Price v MLC Nominees Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Price v MLC Nominees Pty Ltd [2007] FCA 298

ADMINISTRATIVE LAW – Review of determination of Superannuation Complaints Tribunal – whether unfair and unreasonable to not reinstate account according to Superannuation (Resolution of Complaints) Act 1993 (Cth), subs 14(2) – mixed question of fact and law – appeal on question not raised below – permissive clause in trust deed – whether account cashed in favour of member according to Superannuation Industry (Supervision) Regulations 1994, reg 6.22

Superannuation (Resolution of Complaints) Act 1993 (Cth) subs 14(2), s 46
Superannuation Industry (Supervision) Regulations 1994) regs 6.17(2), 6.22

Asgard Capital Management Ltd v Maher (2003) 131 FCR 196 applied
Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 cited

PETER JOHN PRICE v MLC NOMINEES PTY LIMITED AND SUPERANNUATION COMPLAINTS TRIBUNAL
NSD 2202 OF 2005

EDMONDS J
9 MARCH 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2202 OF 2005
ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY GRAHAM BIRD (PRESIDING MEMBER) AND ROSS CHRISTIE (MEMBER)

BETWEEN:

PETER JOHN PRICE
Applicant

AND:

MLC NOMINEES PTY LIMITED
First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL
Second Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

9 MARCH 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s application for leave to further amend his notice of amended appeal be refused.

2.The appeal be dismissed.

3.The applicant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2202 OF 2005
ON APPEAL FROM THE SUPERANNUATION COMPLAINTS TRIBUNAL CONSTITUTED BY GRAHAM BIRD (PRESIDING MEMBER) AND ROSS CHRISTIE (MEMBER)

BETWEEN:

PETER JOHN PRICE
Applicant

AND:

MLC NOMINEES PTY LIMITED
First Respondent

SUPERANNUATION COMPLAINTS TRIBUNAL
Second Respondent

JUDGE:

EDMONDS J

DATE:

9 MARCH 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an appeal from a determination of the Superannuation Complaints Tribunal (‘the Tribunal’) affirming a decision of the first respondent (‘the Trustee’) not to reinstate the applicant’s account in a superannuation fund, of which the Trustee is trustee, in the circumstances outlined below.

  2. The background facts are largely not in dispute although the Trustee, through its counsel, made it clear that because the Tribunal did not make, or was not even in a position, having regard to the state of the evidence before it, to make any finding of fact that the application for payment was a forgery, the Trustee was not to be taken to be making any concession or admission on this factual issue.

    BACKGROUND

  3. The background to this appeal is summarised in the Trustee’s first written outline of submissions, which I gratefully adopt:

    (1)The Trustee is the trustee of the superannuation fund of which the applicant was formerly a member.

    (2)The applicant was originally a member of the Eagle Retirement Fund pursuant to an application for membership made on 3 December 1986 to Australian Eagle…

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Details
Case
[2007] FCA 298
Decision Date

CaseChat Overview and Summary

The case of Price v MLC Nominees Pty Ltd involved the applicant, who had previously been a member of the Eagle Retirement Fund, now under the Universal Super Scheme Trust Deed. The applicant claimed that his signature on a withdrawal form for his superannuation funds had been forged by his wife and sought reinstatement of his account. The Trustee, acting as the trustee of the superannuation fund, had declined the request for reinstatement. The dispute was brought before the court after the Superannuation Complaints Tribunal had affirmed the Trustee's decision not to reinstate the applicant's account.

The primary legal issue before the court was whether the Tribunal's decision to uphold the Trustee's refusal to reinstate the applicant's account was fair and reasonable. The applicant argued that his signature had been forged and that the Trustee should have reinstated his account upon proof of the fraud. The Trustee contended that the decision was fair and reasonable given the circumstances, including the long time elapsed between the signatures, the similarity between the signatures, and the fact that the payment was made to a joint account which the applicant had allowed his wife to control.

The court found that the Tribunal had properly considered all relevant evidence and submissions in making its decision. The court held that the arrangements the applicant had with his wife regarding control of their letterbox and joint bank account meant that the Trustee could reasonably have believed it was dealing with the applicant when processing the withdrawal form and making the payment. Consequently, the court upheld the Tribunal's decision, affirming that the Trustee's decision not to reinstate the applicant's account was fair and reasonable.

The court dismissed the applicant's appeal and ordered that the applicant pay the costs of the first respondent (the Trustee).

Orders

Orders of the court

1. The applicant’s application for leave to further amend his notice of amended appeal be refused.

2. The appeal be dismissed.

3. The applicant pay the first respondent’s costs of the appeal.

Background

Background to the litigation

The background facts are largely not in dispute although the Trustee, through its counsel, made it clear that because the Tribunal did not make, or was not even in a position, having regard to the state of the evidence before it, to make any finding of fact that the application for payment was a forgery, the Trustee was not to be taken to be making any concession or admission on this factual issue.BACKGROUND The background to this appeal is summarised in the Trustee’s first written outline of submissions, which I gratefully adopt:(1)The Trustee is the trustee of the superannuation fund of which the applicant was formerly a member.(2)The applicant was originally a member of the Eagle Retirement Fund pursuant to an application for membership made on 3 December 1986 to Australian Eagle Insurance Company Limited. By a process of transfer and amalgamation, which is not in dispute, that fund became subject to the Universal Super Scheme Trust Deed (as amended from time to time relevantly up to 29 June 2001).(3)The applicant’s superannuation account contained only unrestricted non-preserved funds and thus could be withdrawn at any time subject to the powers and discretions of the Trustee under the deed.(4)The Trustee received a telephone request from the applicant’s wife on 14 August 2001 to send withdrawal forms for the applicant. The Trustee sent the forms with a letter of advice to the applicant’s then home address on 16 August 2001.(5)The forms were returned to the Trustee on or about 23 August 2001 apparently completed by the applicant on or about 22 August 2001.(6)The applicant’s signature on the withdrawal form was verified by comparison with the specimen signature on the original application because the withdrawal request was for more than $10,000 and requested payment of the amount into a joint bank account which the applicant maintained with his wife, Robyn Joy Price.(7)The balance of the superannuation account in the sum of $31,455.82 was deposited by the Trustee into this joint bank account and credited on 4 September 2001.(8)The funds paid in by the Trustee were disbursed from the joint bank account over the course of about two months by payment of household bills, various cash withdrawals and cheque payments and, as to $18,200, for the purchase of a motor vehicle, apparently for or by the applicant.(9)Confirmation of the transaction was posted to the applicant’s home address on 3 or 4 September 2001.(10)Enclosed with the confirmation letter was an Eligible Termination Payment form which was required to be submitted with the applicant’s personal income tax return for the financial year 2002.(11)On or about 11 January 2005 (i.e. more than 3.5 years later) the Trustee received a letter from the applicant dated 8 January 2005, asserting that his signature on the withdrawal form had been forged by his wife and requesting that, if the fraud is proven, his account be reinstated. The applicant supplied a statement by himself and one said to be by his wife and supporting summaries of what the applicant asserted was his financial position. The Trustee declined to reinstate the account.(12)The applicant requested that the Trustee provide documents to the police for neutral examination of the claimed fraud. The Trustee provided copy documents to the applicant to pass on to the police at his discretion.(13)The applicant complained to the Superannuation Complaints Tribunal by letter dated 7 March 2005. Although the terms of the complaint appear to be mainly directed to what the applicant perceived as the Trustee’s failure to ‘be part of’ the police investigation, it is apparent that the Tribunal treated the complaint as concerning the Trustee’s decision to decline reinstatement of the account or, in the applicant’s words, to give ‘a speedy and just settlement’ of the applicant’s claim.(14)The Tribunal received submissions from both parties and received the ‘evidence’ enclosed with the applicant’s letter to the Trustee, the relevant correspondence between the parties and the extract of the applicant’s bank records. The Tribunal had the historical trust deeds for the fund.(15)The Tribunal affirmed the Trustee’s decision not to reinstate the applicant’s account. In the course of its deliberations, the Tribunal said:‘The Tribunal must determine whether the decision of the Trustee not to re-instate the Complainant’s benefit was fair and reasonable in its operation in relation to the Complainant in the circumstances. In reaching its determination, the Tribunal took the whole of the evidence and submissions into account.The Tribunal believes that it is important to consider all the transactions that took place between the Complainant and the Fund in deciding whether the conduct of the Trustee was fair and reasonable. In a document dated 16 August 2001 the Trustee wrote to the Complainant providing an illustration of the benefit he would receive if he withdrew from the Fund due to retirement. This was sent to the address at which the Complainant resides. Whilst the Complainant indicates that he did not receive the document he also submitted that his wife had the only keys to the letter box and he only saw items that his wife chose to hand over. The Tribunal believes that the Complainant in consenting to this arrangement had in effect appointed his wife as his agent and therefore the Trustee could reasonably have regarded the document as having been provided to the Complainant.The withdrawal form that was attached to the document was completed and returned to the Fund. The Trustee may reasonably have assumed that the form came from the Complainant on the basis that it was provided to the Complainant by the Fund. The signature on the withdrawal form was checked by the Trustee against the Complainant’s application to join the Fund. Almost 16 years had elapsed between the two signatures. The Tribunal has no handwriting expertise but regards the contention of the Trustee that the signatures were very similar and therefore accepting it was the signature of the Complainant was reasonable particularly when taken in conjunction with the other details of the payment.The payment was made to a joint bank account in the name of the Complainant and his wife. The Complainant submits that his wife had control of the bank account and that he did not see any of the transactions. This explains why the Complainant did not become aware of the payment from the Fund until 2004. Similar to the arrangement he had with his wife in respect to the letterbox the Complainant chose to allow his wife to have total control of the bank account. The Tribunal does not believe that such an arrangement can be construed as shifting the liability to any party that pays money into that account for the Complainant if the Complainant’s wife applies the money in a manner subsequently not approved of by the Complainant. It is, in the view of the Tribunal, fair and reasonable to regard the Trustee as having made the payment to the Complainant.What is clear to the Tribunal is that the Complainant is responsible for the arrangements he had with his wife in respect to the letterbox at their residence and their joint bank account. These arrangements were such that they caused the superannuation benefit to be applied in a manner not requested by the Complainant. However the Trustee quite reasonably believed that it was at all times dealing with the Complainant, that the Complainant signed the withdrawal form and that it made the payment to the Complainant. Therefore the Tribunal it satisfied that the decision of the Trustee not to re-instate the Complainant’s account in the Fund was fair and reasonable in the circumstances in its operation in relation to the Complainant.’APPEAL TO THIS COURT

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EDMONDS J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

Full text does not contain this section.