Kestel v Superannuation Complaints Tribunal

FEDERAL COURT OF AUSTRALIA

Kestel v Superannuation Complaints Tribunal [2010] FCA 1300

Citation:		Kestel v Superannuation Complaints Tribunal [2010] FCA 1300
Parties:		DANNIIELLE ELIZABETH KESTEL v THE SUPERANNUATION COMPLAINTS TRIBUNAL and ASGARD CAPITAL MANAGEMENT LIMITED
File number(s):		NSD 685 of 2010
Judge:		JAGOT J
Date of judgment:		25 November 2010
Catchwords:		AGENCY – whether solicitor had authority to receive documents – whether notice given within the meaning of s 14(3) of the Superannuation (Resolution of Complaints) Act 1993 (Cth)
Legislation:		Superannuation (Resolution of Complaints) Act 1993 (Cth)
Cases cited:		IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205 Kent v Hogarth [1995] QCA 472 Kowalski v Superannuation Complaints Tribunal [2010] FCA 473 Magripilis & Anor v Baird & Anor [1926] St R Qd 89 Midland Bank plc v Serter [1995] 1 Fam Law R 1034 Ray v Superannuation Complaints Tribunal [2004] FCA 1120 Saffron Walden Second Benefit Building Society v Rayner (1880) 14 Ch D 406 Singer v Trustee of the property of Munro & Anor (bankrupts) [1981] 3 All ER 215 White v Illawarra Mutual Building Society Ltd [2002] NSWCA 164 Wright v Somerton [2004] QSC 231
Date of hearing:	16 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	23
Solicitor for the Applicant:	Mr J Brent of John Brent & Co
Counsel for the Respondents:	The Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 685 of 2010

BETWEEN:

DANNIIELLE ELIZABETH KESTEL
Applicant

AND:

THE SUPERANNUATION COMPLAINTS TRIBUNAL
First Respondent

ASGARD CAPITAL MANAGEMENT LIMITED
Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	25 NOVEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application filed on 2 November 2010 be dismissed.

2.Each party pay their own costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 685 of 2010

BETWEEN:

DANNIIELLE ELIZABETH KESTEL
Applicant

AND:

THE SUPERANNUATION COMPLAINTS TRIBUNAL
First Respondent

ASGARD CAPITAL MANAGEMENT LIMITED
Second Respondent

JUDGE:	JAGOT J
DATE:	25 NOVEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This application concerns s 14(3) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act). Section 14(3) is as follows:

   If a person has been given a written notice by the trustee of a fund setting out:

   (a)the trustee’s decision in relation to the person’s objection to the payment of a death benefit; and

   (b)the prescribed period within which the person must complain to the Tribunal about the decision;

   the person may only make a complaint under this section to the Tribunal within that period.

2. The facts may be stated briefly.  The applicant is a person who has an interest in her husband’s death benefit.  The second respondent is the trustee of the fund from which that benefit is to be…