Re Guild Trustee Services Pty Ltd (in its capacity as trustee for the Guild Retirement Fund)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2023 04311

IN THE MATTER OF GUILD TRUSTEE SERVICES PTY LTD (IN ITS CAPACITY AS TRUSTEE FOR THE GUILD RETIREMENT FUND)

GUILD TRUSTEE SERVICES PTY LIMITED (ABN 84 068 826 728)
in its capacity as trustee for THE GUILD RETIREMENT FUND
(ABN 22 599 554 834)

Plaintiff

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JUDGE:	Waller J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2023
DATE OF JUDGMENT:	30 October 2023
CASE MAY BE CITED AS:	Re Guild Trustee Services Pty Ltd (in its capacity as trustee for the Guild Retirement Fund)
MEDIUM NEUTRAL CITATION:	[2023] VSC 629

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EQUITY — Trusts and trustees — Superannuation funds — Application by trustee for Supreme Court assent to receive and give a benefit in the context of retirement of existing trustee and appointment of new trustee — Court’s power to make orders sought — Application made pursuant to s 180 Crimes Act 1958 and equivalent interstate statutory provisions — In the alternative, pursuant to r 54.02 Supreme Court (General Civil Procedure) Rules 2015 and equivalent interstate statutory provisions — Court’s discretion to assent — Court satisfied appointment in best interests of beneficiaries — Court satisfied arrangements will not provide inducement to act otherwise than in best interests of beneficiaries — Application granted.

Diversa Trustees Limited in its capacity as Trustee for the Future Super Fund [2023] VSC 279; The Trustee for Host Plus Superannuation Fund v Maritime Super Pty Limited [2023] NSWSC 725; Application of MLC Investments Limited [2022] NSWSC 1541; BT Funds Management Ltd as trustee for Retirement Wrap Superannuation Fund [2022] NSWSC 401; H.E.S.T Australia Ltd v Attorney-General (Qld) & Anor; Mercy Super Pty Ltd v Attorney-General (Qld) & Anor [2022] QSC 221; Application by United Super Pty Ltd atf Construction and Building Unions Superannuation Fund [2021] NSWSC 1679, considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J W S Peters AM KC B K Holmes	K&L Gates

TABLE OF CONTENTS

A....... Introduction
B....... Background
C....... The proposed Retirement of GTS
Current Arrangements
Proposed New Arrangements
Members’ Best Financial Interests

D....... Section 180 – Valuable Consideration
E....... Section 180 – Actus Reus
1            The DORA Indemnities
2            GGH Costs Payments
3            Payments and indemnities under the BATA
4            Payments and indemnity under the SSPA
5            Indemnities under the Sponsor and Promoter Agreement
6            Indemnities under the Investment Management and Advisory Agreement
7           Fees and indemnities under the Strategic Alliance Agreement

F....... Section 180 – Mens Rea
G...... The Discretion to Assent
H...... Power to make the orders
I........ Orders

HIS HONOUR:

A.INTRODUCTION

The plaintiff, Guild Trustee Services Pty Limited (‘GTS’), in its capacity as the trustee of a superannuation fund known as the ‘Guild Retirement Fund’ (the ‘Fund’), applies to the Court for its assent to certain arrangements pursuant to s 180 of the Crimes Act 1958 (Vic) (‘s 180’; the ‘Crimes Act’) and equivalent statutory provisions in Western Australia and Queensland.[1] In the alternative, GTS seeks such orders relying upon r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the ‘Rules’) and equivalent statutory provisions in Western Australia and Queensland.[2]
[1]s 535 of the Criminal Code Act Compilation Act 1913 (WA) and s 442F of Sch 1 to the Criminal Code Act 1899 (Qld).
[2]s 92 of the Trustee Act 1962 (WA) and s 96 of the Trusts Act 1973 (Qld).
The arrangements relate to the proposed retirement of GTS as the trustee of the Fund, and the appointment of Equity Trustees Superannuation Limited (‘ETSL’) as the new trustee (‘Retirement and Appointment’). In connection with the Retirement and Appointment, it is proposed that various indemnities be given by GTS and ETSL.
In addition, the Retirement and Appointment is part of a broader transaction involving other parties, and it is proposed that indemnities be given by some of these other parties, and that certain fees be paid for future sponsorship and promotion services to be provided to the Fund.
The application was brought in this Court because GTS and ETSL are each incorporated in and have their principal place of business in the State of Victoria.[3]
[3]Affidavit of Greg Everett affirmed on 14 September 2023 (‘Everett Affidavit’), [26], [43].
I heard the application on 10 October 2023 and reserved my decision. I am satisfied that the appointment of the new trustee, ETSL, is in the best interests of the beneficiaries of the Fund and that entry into the contractual arrangements providing for the retirement of GTS and the appointment of ETSL, and the performance of those arrangements, is in the best interests of the beneficiaries of the Fund. I am also satisfied that the negotiation of the arrangements, and the proposed entry into and performance of them, did not provide any inducement to GTS to act other than in the best interests of the beneficiaries of the Fund.
In those circumstances and for the reasons set out below, I consider it is appropriate to make an order pursuant to s 180 of the Crimes Act alternatively r 54.02 of the Rules and the equivalent statutory provisions in Western Australia and Queensland as set out at [92].
Limited aspects of the evidence relied on by GTS are commercially sensitive and will be subject to confidentiality orders (see [92(3)] below and Annexure A). The key elements of the contractual arrangements are referred to in these reasons. It is not appropriate or necessary to reveal financial details of the arrangements, being the limited matters for which confidentiality is now claimed. The interests of open justice are sufficiently and appropriately given effect to by the matters of substance that are referred to in these reasons.
B.BACKGROUND
By originating motion filed 15 October 2023 (the ‘Originating Motion’), GTS sought the following orders:
(1)An order pursuant to s 180 of the Crimes Act 1958 (Vic) (Crimes Act), alternatively pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), that the Court assents and consents to:
(a)the plaintiff (GTS) soliciting and receiving or offering and giving (as appropriate) the DORA Indemnities (described at paragraph 73 of the affidavit of Greg Everett affirmed on 14 September 2023 (Everett Affidavit)) and the DORA Novation Indemnities (described at paragraph 77 of the Everett Affidavit); and
(b)Equity Trustees Superannuation Limited (ETSL) soliciting and receiving or offering and giving (as appropriate) those DORA Indemnities and Novation Indemnities.
(2)An order pursuant to s 180 of the Crimes Act, alternatively pursuant to r 54.02 of the Rules, that the Court assents and consents to Guild Group Holdings Limited (GGH) offering or giving the GGH Indemnities and Obligations (described at paragraph 79 of the Everett Affidavit) and to ETSL and GTS soliciting or receiving those GGH Indemnities and Obligations.
(3)An order pursuant to s 180 of the Crimes Act, alternatively pursuant to r 54.02 of the Rules, that the Court assents and consents to GGH offering or giving and to GTS and ETSL soliciting or receiving the benefit of the GGH Costs Payments (described at paragraphs 82 to 84 of the Everett Affidavit).
(4)An order pursuant to s 180 of the Crimes Act, alternatively pursuant to r 54.02 of the Rules, that the Court assents and consents to:
(a)GTS soliciting and receiving the purchase price under the BATA (described at paragraph 93 of the Everett Affidavit);
(b)GTS soliciting and receiving or offering and giving (as appropriate) the GSS BATA Indemnities (described at paragraph 94 of the Everett Affidavit), the GTS BATA Indemnities (described at paragraph 96 of the Everett Affidavit) and the BATA Novation Indemnities (described at paragraph 98 of the Everett Affidavit); and
(c)Guild Super Services Pty Ltd (GSS) soliciting and receiving or offering and giving (as appropriate) those GSS BATA Indemnities, GTS BATA Indemnities and BATA Novation Indemnities.
(5)An order pursuant to s 180 of the Crimes Act, alternatively pursuant to r 54.02 of the Rules, that the Court assents and consents to GTS soliciting the purchase price under the SSPA for GGH (described at paragraphs 101 to 105 of the Everett Affidavit).
(6)An order pursuant to s 180 of the Crimes Act, alternatively pursuant to r 54.02 of the Rules, that the Court assents and consents to Future Promoter Holdings Pty Ltd offering or giving the indemnity to GTS under the SSPA described at paragraph 104 of the Everett Affidavit, and to GTS soliciting or receiving that indemnity.
(7)An order pursuant to s 180 of the Crimes Act, alternatively pursuant to r 54.02 of the Rules, that the Court assents and consents to:
(a)ETSL soliciting and receiving or offering and giving (as appropriate) the indemnities under the Sponsor and Promotor Agreement (described at paragraphs 112 to 113 of the Everett Affidavit);
(b)GSS offering and giving those indemnities.
(8)An order pursuant to s 180 of the Crimes Act, alternatively pursuant to r 54.02 of the Rules, that the Court assents and consents to:
(a)ETSL soliciting and receiving or offering and giving (as appropriate) the indemnities under the Investment Management and Advisory Agreement (described at paragraphs 117 to 118 of the Everett Affidavit);
(b)Future Super Investment Services Pty Ltd soliciting and receiving or offering and giving (as appropriate) those indemnities.
(9)An order pursuant to s 180 of the Crimes Act, alternatively pursuant to r 54.02 of the Rules, that the Court assents and consents to:
(a)GTS soliciting the Distribution Service Fee to be paid by GSS to GGH under the Strategic Alliance Agreement (described at paragraph 121 of the Everett Affidavit); and
(b)GTS soliciting and receiving and Future Group offering and giving the indemnity under the Strategic Alliance Agreement (described at paragraph 122 of the Everett Affidavit).
(10)An order that, until further order of the Court, the Everett Affidavit and its confidential exhibits are not to be disclosed (by publication or otherwise) to any person or entity, except to:
(a)the judge case-managing and/or hearing the proceeding or any appeal therefrom; and
(b)GTS, GGH, GSS, ETSL, Future Group Future Promoter Holdings Pty Ltd, Future Super Investment Services Pty Ltd and their respective legal representatives
(11)Such further or other orders as the Court thinks fit.[4]
[4]Originating Motion of the plaintiff, filed 15 September 2023 (the ‘Originating Motion’), [1]–[11]. The orders sought also referred to the relevant interstate provisions by way of footnote.
The Originating Motion was supported by the following affidavits:
(a)affidavit of Greg Everett affirmed on 14 September 2023 (‘Everett Affidavit’);
(b)affidavit of David Brian Warren affirmed on 25 September 2023 (‘Warren Affidavit’);
(c)affidavit of Simon Sheikh affirmed on 3 October 2023 (‘Sheikh Affidavit’); and
(d)affidavit of Paul Cassidy affirmed on 4 October 2023 (‘Cassidy Affidavit’).
A further affidavit of Greg Everett was affirmed and filed on 9 October 2023 prior to hearing (‘Further Everett Affidavit’).
GTS seeks the Court’s assent to these arrangements to avoid the prospect that they might otherwise be caught by the ‘secret commission’ provisions of s 180. Section 180 provides (broadly) that it is an offence for any valuable consideration to be given to a trustee as an inducement or reward for the appointment of another person to replace the trustee. However, s 180 provides that the Court can assent to the relevant arrangements, in which case no offence will have been committed.
Of primary relevance to the exercise of the Court’s discretion to assent under s 180 is whether the proposed arrangements are in Fund members' best financial interests. As discussed in further detail below, GTS argues that it has carefully considered this issue and concluded that the transaction as a whole, including the proposed Retirement and Appointment, is in the best financial interests of the Fund’s members because it will result in a reduction of administration fees, increased Fund capabilities including due to several synergies and increased scale, and improved member services.
The orders sought in the Originating Motion above at [8] include orders for the benefit of GTS and ETSL, as well as the other parties to the broader transaction who are not parties to this proceeding. Those other parties have filed affidavits stating that they consent to the orders being made.[5]
[5]Sheikh Affidavit; Warren Affidavit; Cassidy Affidavit.
The Australian Prudential Regulation Authority (‘APRA’) has been notified of this application and has stated that it does not intend to seek leave to appear to make any submissions in relation to the application.[6]
C.THE PROPOSED RETIREMENT OF GTS
[6]Further Everett Affidavit, 14 (Letter from APRA to K&L Gates dated 4 October 2023).

Current Arrangements

As noted above, GTS is currently the trustee of the Fund. GTS is a registered Australian proprietary company limited by shares.[7]
[7]Everett Affidavit, [25].
The Fund is a complying superannuation fund registered with APRA and is a public offer fund under the Superannuation Industry (Supervision) Act 1993 (Cth) (‘SIS Act’).[8] The Fund currently offers three products: GuildSuper, Child Care Super, and GuildPension.[9] As at 30 June 2023, the Fund had over 95,000 members in the pharmacy, allied health and childcare industries, and approximately $2.8b in funds under management.[10]
[8]Ibid, [32].
[9]Ibid, [34].
[10]Ibid, [41].
GTS is not a trustee of any other superannuation fund.[11]
[11]Ibid, [24].
GTS holds a Public Offer RSE Licence (that is, as trustee of a Registrable Superannuation Entity) granted by APRA. This licence authorises GTS to be the trustee of a public offer superannuation entity. GTS also holds an Australian Financial Services Licence (‘AFSL’) granted by the Australian Securities and Investments Commission (‘ASIC’). This licence authorises GTS to carry on a financial services business in Australia.[12]
[12]Ibid, [30]–[31], 166-170 (GTS' AFSL).
All of GTS’ shares are held by Guild Superannuation Services Limited (‘GSSL’), which is itself wholly owned by Guild Group Holdings Limited (‘GGH’). GGH is wholly owned by the Pharmacy Guild of Australia (the ‘Pharmacy Guild’), a not-for-profit employer organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth).[13]
[13]Ibid, [2].
In addition to being trustee of the Fund, GTS presently carries out the sponsorship, promotion, and investment management services in relation to the Fund.[14] This includes the general marketing and sales functions for the Fund, the preparation and implementation of a business and marketing plan for the Fund, maintaining the Fund’s website and preparing the Fund’s marketing material.[15] GTS has approximately 40 current employees.[16]
[14]Ibid, [40].
[15]Ibid, 661–662 (Sponsor and Promoter Agreement Schedule).
[16]Ibid, [10(b)].

Proposed New Arrangements

By May 2022, GGH had received three unsolicited offers for GGH’s superannuation business, which is conducted by its wholly owned subsidiary GTS.[17]
[17]Ibid, [54].
Ultimately, GGH decided to enter into a transaction to sell that superannuation business to Future Group Australia Holdings Pty Ltd (‘Future Group’). It is proposed that Future Group will, in effect, acquire from GGH the business of providing sponsorship and promotion services to the Fund (the ‘Transaction’).[18]
[18]Ibid, [4], [18]–[22].
In this context, GTS has determined that it is in Fund members’ best financial interests that GTS retire as trustee of the Fund, and that ETSL be appointed as the new trustee.[19]
[19]Ibid, [66]–[67].
ETSL is a registered public company limited by shares.[20] ETSL holds an RSE Licence (that is, as trustee of a Registrable Superannuation Entity) granted by APRA, which authorises ETSL to be the trustee of a public offer superannuation entity. ETSL also holds an AFSL granted by ASIC, which authorises ETSL to carry on a financial services business in Australia.[21] ETSL is also trustee of, among others, the Future Super Fund and the Smart Future Trust.[22]
[20]Ibid, [42].
[21]Ibid, [47]–[48] (ETSL's RSE licence), 308–314 (ETSL's AFSL licence).
[22]Ibid, [44], [53].
The Transaction involves two main steps:[23]
(a)first, GGH will implement an internal business restructure, which involves incorporating a new subsidiary called Guild Super Services Pty Ltd (‘GSS’) and the transfer of GTS’ superannuation business and certain assets to GSS pursuant to a Business Asset Transfer Agreement (‘BATA’); and
(b)second, Future Group will acquire from GGH the business of providing sponsorship and promotion services to the Fund. This second aspect will involve the following steps:
(i)a transfer of the trusteeship of the Fund from GTS to ETSL. This will occur pursuant to a Deed of Retirement and Appointment (‘DORA’);
(ii)a transfer of the sponsorship and promotion arrangements in respect of the Fund from GGH and its subsidiaries to Future Group and its subsidiaries.[24] This will occur by Future Promoter Holdings Pty Ltd (‘Future Promoter’) (a wholly owned subsidiary of Future Group) purchasing all of the shares in GSS from GGH pursuant to a Share Sale and Purchase Agreement (‘SSPA’), and ETSL outsourcing the sponsorship and promotion services in relation to the Fund to GSS (which will be a subsidiary of Future Group) pursuant to a Sponsor and Promoter Agreement (‘Sponsor and Promoter Agreement’);
(iii)Future Group will enter into a strategic alliance with GGH and the Pharmacy Guild to facilitate the ongoing growth of the Fund, pursuant to a Strategic Alliance Agreement (‘Strategic Alliance Agreement’). Under the terms of the Strategic Alliance Agreement, it is proposed that GGH will be paid ongoing fees by GSS, on behalf of Future Group, for GGH providing sub-distribution services and for a licence permitting ETSL and GSS to use certain Fund-associated intellectual property (such as the ‘Guild Super’ trade mark) to promote interests in the Fund; and
(iv)ETSL will appoint Future Super Investment Services Pty Ltd (‘Future Super Investment Services’), a wholly owned subsidiary of Future Group and authorised representative of Future Promoter, as investment manager of the Fund under an Investment Management and Advisory Agreement (‘Investment Management and Advisory Agreement’).
[23]Ibid, [18], [20].
[24]GTS currently undertakes sponsorship and promotion arrangements in respect of the Fund.
Future Group is a registered proprietary company limited by shares. Future Super Investment Services and Future Promoter are both registered proprietary companies limited by shares and wholly owned subsidiaries of Future Group.[25]
[25]Everett Affidavit, [49]–[50].
Future Super Investment Services is the sponsor, promoter, and investment manager of the Future Super Fund.[26] Future Promoter is the sponsor, promoter, and master administrator for the Smart Future Trust.[27]
[26]As at 31 March 2023, the Future Super Fund had 44,561 members and approximately $1.6 billion in funds under management: Ibid, [51].
[27]As at 31 July 2023, the Smart Future Trust had 230,815 members and approximately $5.5 billion in funds under management: Ibid, [52].

Members’ Best Financial Interests

GTS is pursuing the Retirement and Appointment and the broader Transaction on the basis that the Board of GTS considers that it is in the best financial interests of members of the Fund to do so.[28]
[28]Ibid, [19].
On 22 December 2022, GTS became aware that GGH was considering a proposed transaction with Future Group which would involve GTS retiring as trustee of the Fund.[29]
[29]Ibid, [55].
Subsequently, between February 2023 and May 2023, GGH undertook due diligence on ETSL and its potential role as new trustee of the Fund, and GTS and GGH undertook an initial bilateral due diligence on Future Group.[30]
[30]Ibid, [56]–[59].
In addition, since 22 December 2022, GTS has undertaken significant due diligence to determine whether, having regard to the best financial interests of the Fund’s members, it would be appropriate for GTS to retire as trustee and appoint ETSL as trustee. This has involved GTS carefully considering the overall benefits to members of the Fund provided by the appointment of the proposed new trustee.[31]
[31]Ibid, [62].
On or about 13 June 2023, Future Group made a revised final offer to GGH in relation to the Transaction, which included the proposed Retirement and Appointment (‘Revised Final Offer’).[32] Amongst other things, the Revised Final Offer referred to the fact that:[33]
(a)under Future Group’s proposal, the Fund would become part of a superannuation group[34] that exceeds APRA’s sustainability metrics, meaning that members can expect continued downward pressure on fees as the group grows over the medium to long term; and
(b)the Future Super Fund already far exceeds APRA’s sustainability metrics. Combining the previous three years of net flows and member growth rates of the Future Super Fund, the Smart Future Trust and the Guild Retirement Fund will result in the group exceeding APRA’s indicators of long-term viability. Fewer than 15 public offer funds meet these criteria.
[32]Ibid, [60], 335–344 (Revised Final Offer).
[33]Ibid, 340.
[34]As noted above at [24] and [27], Future Super Investment Services is the sponsor, promoter and investment manager of the Future Super Fund, Future Promoter is the sponsor, promoter and master administrator for the Smart Future Trust, and ETSL is the trustee of the Future Super Fund and the Smart Future Trust.
Thereafter, GGH agreed to enter into exclusive negotiations with Future Group for the acquisition of the business of providing sponsorship and promotion services to the Fund from GGH, and that part of the structure of the proposed arrangement was the proposed Retirement and Appointment.[35]
[35]Everett Affidavit, [61], 345–355 (MBFI Paper).
On 29 August 2023, the GTS board was presented with a ‘Member best financial interest assessment’ (‘MBFI Paper’) prepared by K&L Gates which analysed whether the Transaction, including the proposed Retirement and Appointment, was in Fund members’ best financial interests.[36]
[36]Ibid, [65].
The MBFI Paper concluded that the Transaction as a whole, including the proposed Retirement and Appointment, was in the best financial interests of Fund’s members, including for the following reasons:[37]
(a)Reduction in administration fees: On completion of the DORA, ETSL as incoming trustee will reduce the annual fixed administration fee, including GST, alongside the reduction in the volume-based administration fee for choice members, including GST. The initial fee reduction is expected to be followed by two further reductions in the fixed administration fee within the first two years post completion of the DORA;[38]
(b)Increased Fund capabilities: a discussion draft MBFI assessment prepared by Deloitte dated 13 June 2023 (the ‘Deloitte DD’) states that it is the intention of Future Group to continually improve the member servicing across the various member cohorts and that there have been several synergies identified including increased scale which will allow for greater investment in technology and complementary strengths from combining Future Group and GTS offerings; and
(c)Improved member services: The Deloitte DD notes certain synergies that have been identified in relation to member servicing including increased scale allowing for greater investment in technology and improved member servicing capabilities.
[37]Ibid, [66].
[38]The details of the reduction in administration fees were provided to the Court, and are commercially sensitive and subject to the orders set out at [92(3)] below: Everett Affidavit, [66(a)].
On 31 August 2023 and 1 September 2023, the members of GTS’ Board[39] resolved that the overall impact of the Transaction was in the best financial interests of members of the Fund (‘Board Resolution’).[40]
D.SECTION 180 – VALUABLE CONSIDERATION
[39]Other than Non-Executive Director Mr Nickolas Panayiaris, who recused himself from the vote on the Board Resolution as Mr Panayiaris is a member of the Pharmacy Guild's National Council (equivalent to a board of directors): Ibid, [67], [69].
[40]Subject to a number of items being resolved prior to the Transaction completing: Ibid, [67]–[68], 356–357 (Board Resolution).
Section 180 provides as follows:
180 Secret commission to trustee in return for substituted appointment
Every person who offers or gives any valuable consideration to a trustee and every trustee who receives or solicits any valuable consideration for himself or for any other person without the assent of the persons beneficially entitled to the estate or of the Supreme Court as an inducement or reward for appointing or having appointed or for joining or having joined with another in appointing or for authorizing or having authorized or for joining or having joined with another in authorizing any person to be appointed in his stead or instead of him and any other person as trustee shall be guilty of an indictable offence, and shall—
(a)be liable if a corporation to a level 5 fine and if any other person to level 5 imprisonment (10 years maximum) or a level 5 fine or both.
Section 175 of the Crimes Act defines ‘valuable consideration’ in the following terms:
valuable consideration includes any money loan office place employment agreement to give employment benefit or advantage whatsoever and any commission or rebate deduction or percentage bonus or discount or any forbearance to demand any money or money's worth or valuable thing and the acceptance of any of the said things shall be deemed the receipt of a valuable consideration;
valuable consideration when used in connexion with the offer thereof includes any offer of any agreement or promise to give and every holding out of any expectation of valuable consideration;
valuable consideration when used in connexion with the receipt thereof includes any acceptance of any agreement promise or offer to give and of any holding out of any expectation of valuable consideration.
Similar provisions exist in Western Australia and Queensland.[41] Until very recently, s 249E of the Crimes Act 1900 (NSW) was in similar terms to s 180. However, with effect from 20 September 2023, s 249E of the Crimes Act 1900 (NSW) was amended by the Crimes Amendment (Corrupt Benefits for Trustees) Act 2023 (NSW) (the ‘NSW Crimes Amendment Act’) so that the offering, giving, receipt or solicitation of the relevant benefit must be done ‘corruptly’.
[41]See s 535 of the Criminal Code Act Compilation Act 1913 (WA) and s 442F of Sch 1 to the Criminal Code Act 1899 (Qld). There are no equivalent provisions in the Northern Territory, South Australia, or Tasmania.
These provisions have been the subject of a number of recent decisions[42] in which the Courts have accepted that arrangements similar to those presently proposed may fall within these provisions, and the Courts have granted their assent or consent to the arrangements so as to avoid the prospect of any offence being committed.
[42]BT Funds Management Ltd as trustee for Retirement Wrap Superannuation Fund [2022] NSWSC 401 (‘BTFM’)(Ball J); H.E.S.T Australia Ltd v Attorney-General (Qld) & Anor; Mercy Super Pty Ltd v Attorney-General (Qld) & Anor [2022] QSC 221 (‘HEST’) (Kelly J); Application of MLC Investments Limited [2022] NSWSC 1541 (Stevenson J) (‘MLC Investments)’; Diversa Trustees Limited in its capacity as Trustee for the Future Super Fund [2023] VSC 279 (Delany J) (‘Diversa’); The Trustee for Host Plus Superannuation Fund v Maritime Super Pty Limited [2023] NSWSC 725 (Stevenson J) (‘Host Plus’).
In Application of MLC Investments Limited,[43] a decision made prior to the recent amendment of s 249E of the Crimes Act 1900 (NSW), Stevenson J clarified the circumstances in which proposed conduct may fall within the ambit of the provision. Stevenson J made an order pursuant to s 249E of the NSW Crimes Act that the Court consented to MLC Investments Limited soliciting and receiving ‘Implementation Expenses’ and ‘Indemnities’ upon its retirement as responsible entity and trustee. MLC Investments Limited was the responsible entity of 19 registered managed investment schemes and the trustee of 18 unregistered management investment schemes, and had determined that its retirement as responsible entity and trustee was in the best interests of scheme members. Stevenson J explained the manner in which the relevant offence provisions were attracted as follows:
MLC apprehends that s 249E of the Crimes Act [1900 (NSW)] and the cognate legislation to which I have referred,[44] may stand in the way of that course. That is because, as I have set out, those provisions make it a crime for a person entrusted with property to receive or solicit, or for another person to offer or give that person, a benefit as an inducement or reward for the appointment of a new trustee without the consent of the beneficiaries, or of the Court…[45]
I think MLC is correct to submit that, having regard to the broad terminology of s 249E of the Crimes Act, the proposed conduct would likely fall within the ambit the section. That is because JANA and CIML are offering to give the benefit of the Implementation Expenses and the Indemnities to MLC and MLC is proposing to receive, if not solicit, those benefits. A similar conclusion was reached by Ball J in his Honour’s consideration of s 249E in [BTFM], albeit in relation to a transaction known as a “successor fund transfer”.
I also think it likely that such a benefit should be characterised as an “inducement or reward” for the appointment of CIML as the new responsible entity and trustee.[46]
[43][2022] NSWSC 1541 (Stevenson J) (‘MLC Investments’).
[44]Being s 180 of the Crimes Act, s 535 of the Criminal Code Act Compilation Act 1913 (WA), s 442F of Sch 1 to the Criminal Code Act 1899 (Qld).
[45]MLC Investments [2022] NSWSC 1541, [11].
[46]Ibid, [13]–[14].
In the recent Diversa decision in this Court, Delany J quoted with approval the following statement of Ball J in BTFM as to the matters relevant to the Court giving its assent:[47]
The evident purpose of the Provisions is to prevent a trustee from being persuaded by the prospect of personal gain to exercise its power to appoint a substitute trustee. It would, therefore, normally be appropriate for the Court to give its consent to the proposed conduct if it was satisfied that the appointment of the new trustee was in the best interests of beneficiaries or if it was satisfied that the proposed conduct did not provide an inducement to the transferor to act other than in the best interests of the beneficiaries. In either case, the object of the prohibition contained in the Provisions would not be undermined.
E.SECTION 180 – ACTUS REUS
[47]Diversa [2023] VSC 279, [7].
As to the relevant actus reus of the offence, Stevenson J observed in MLC Investments that the actus reus of s 249E of the Crimes Act 1900 (NSW) is that a party ‘offers or gives a benefit to a person entrusted with property’ or that such a person ‘receives or solicits a benefit for anyone’ without the requisite consent of the beneficiaries or the Court.[48] His Honour accepted that the proposed conduct would likely satisfy the actus reus of s 249E.[49] In Diversa, Delany J referred to these passages of MLC Investments and said:[50]
…The actus reus of [s 180] is very similar. Namely, that a person ‘offers or gives any valuable consideration to a trustee’ or that such a person ‘receives or solicits any valuable consideration for himself or for any other person’ without the requisite assent.
It is unnecessary to closely analyse the benefits or advantages provided to or to be received by Diversa from ETSL, FSIS and FSG in the form of or as a result of the indemnities and other provisions of the agreements to which I have referred. It is also unnecessary to consider or to deal with the negotiations and the conduct that led to the provision of the indemnities and other benefits dealt with in the agreements. It is sufficient to observe that, having regard to the definition of ‘valuable consideration’ set out above, the actus reus of [s 180] is satisfied, namely, that a party ‘offers or gives any valuable consideration to a trustee’ or the trustee ‘receives or solicits any valuable consideration’ without the requisite assent.
[48]MLC Investments [2022] NSWSC 1541, [16].
[49]Ibid, [13]. (See extract above at [41]).
[50]Diversa [2023] VSC 279, [31]–[32].
I am satisfied that the same approach should be adopted in the present matter in relation to the various arrangements which are detailed in the Everett Affidavit and referred to below.
The aspects of the Transaction which could amount to valuable consideration for the purposes of s 180, and in relation to which GTS seeks the orders in this proceeding, are considered below.

1 The DORA Indemnities

The DORA was executed by GTS, GGH and ETSL on 1 September 2023.[51] It provides for the retirement of GTS and the appointment of ETSL as trustee of the Fund, as well as for indemnities as between GTS at ETSL (the ‘DORA Indemnities’).
[51]Everett Affidavit, 358-385 (DORA).
The DORA Indemnities are summarised in paragraph 73 of the Everett Affidavit and are the subject of the orders sought in paragraph 1 of the Originating Motion.
The indemnity given by ETSL to GTS provides GTS with a continuing right of indemnity from Fund assets after it ceases to hold those assets.[52] This reflects the existing position at general law where GTS would continue to enjoy a right of indemnity post-retirement in respect of its past conduct as trustee.
[52]Ibid, [74]. See 358, 377–378 (clause 10 of the DORA).
The indemnity given by GTS to ETSL provides ETSL with a continuing right of indemnity from GTS for breaches of the kind described, thereby preventing those liabilities from being borne by members of the Fund.[53]
[53]Ibid, [75]. See 358, 378 (clause 11 of the DORA).
The DORA also requires the parties to use their best endeavours to procure the assignment or novation of contractual arrangements with service providers from GTS to ETSL, along with related indemnities (the ‘DORA Novation Indemnities').[54]
[54]Which are the subject of the orders sought in paragraph 1 of the Originating Motion above at [8]. Ibid, [77] (DORA Novation Indemnities). See 358, 371 (clause 6.7 of the DORA).
In the absence of the DORA Novation Indemnities, the relevant agreements would need to be terminated by GTS and re-negotiated by ETSL. The cost and expense of this termination and renegotiation would ultimately be borne by the members of the Fund. Accordingly, the DORA Novation Indemnities avoid this additional expense and facilitate the continuation of services to members of the Fund.[55]
[55]Ibid, [78].
The DORA also provides for what are referred to in the evidence and the Originating Motion as the GGH Indemnities and Obligations, which provide for the following:[56]
(a)in the event of a claim being brought in respect of any policy of insurance maintained by GTS, GGH will pay any excess payable and the costs and expenses of bringing and pursing the claim. This ensures that, in the event of an insured claim against GTS by members of the Fund, and where GTS was unable to pay the excess and costs, these amounts would still be recoverable by members of the Fund against GGH;
(b)GGH will indemnify ETSL in respect of any Fund liability that arises in connection with any GGH breach of the Services Agreement between GGH and GTS. This ensures that Fund members retain a right to recover for any such indemnified losses; and
(c)GGH will either repay prepaid fees to GTS or, to the extent they are not repaid prior to GTS' retirement as trustee of the Fund, pay such amounts to ETSL.
[56]Ibid, [79]. See 358, 378–379 (clause 12 of the DORA).
The GGH Indemnities and Obligations are the subject of the orders sought in paragraph 2 of the Originating Motion.

2 GGH Costs Payments

Pursuant to the GGH Letter of Comfort and clause 13 of the DORA, GGH will make the following payments (the ‘GGH Cost Payments’):[57]
(a)any stamp duty payable, if the change of trustee from GTS to ETSL triggers a change of ownership in respect of the assets of the Fund;
(b)any reimbursement of insurance premiums to members following conclusion of the insurance remediation program of work that would otherwise have been recoverable from IRESS but, due to the Transaction, cannot be recovered from IRESS; and
(c)any unplanned and currently unanticipated Transaction costs[58] above those to be approved by the GTS board and funded from the Fund's Contingency Reserve.
[57]Ibid, [82]–[83]. See 358, 379 (clause 13 of the DORA).
[58]Up to a monetary limit the details of which were provided to the Court, and which are commercially sensitive and subject to the orders set out at [92(3)] below.
The GGH Costs Payments are the subject of the orders sought in paragraph 3 of the Originating Motion.
The GGH Costs Payments prevent these costs from being borne by members of the Fund.

3 Payments and indemnities under the BATA

The BATA is between GTS (as trustee of the Fund) and GSS, and effects an internal reorganisation of GGH subsidiaries. In particular, pursuant to the BATA, GTS transfers the business of providing sponsorship and promotion services to the Fund and certain assets required for this business to GSS (the newly incorporated entity that will be purchased by Future Promoter under the SSPA).[59]
[59]Ibid, 450–495 (BATA).
The BATA provides for GTS to sell its business (excluding trustee services) and assets to GSS for a purchase price the details of which were provided to the Court, and which are commercially sensitive and subject to the orders set out at [92(3)] below.[60]
[60]Ibid, [93]. See 450, 460 (clause 2.1 of the BATA). See also 450, 462 (clause 4.1 of the BATA).
ETSL was not involved in the negotiation of the BATA or the arrangements to which it relates, save in relation to the DORA.[61]
[61]Ibid, [90].
The BATA contains various indemnities between GTS and GSS, which are summarised in paragraphs 94-98 of the Everett Affidavit and are referred to as the GSS BATA Indemnities, the GTS BATA Indemnities, and the BATA Novation Indemnities.
These indemnities, as well as the payment of the purchase price referred to above, are the subject of the orders sought in paragraph 4 of the Originating Motion.
In relation to the indemnities:
(a)but for the GSS BATA Indemnities, GTS would be indemnified from Fund property, and members would therefore ultimately bear any loss;[62]
(b)the GTS BATA Indemnities preserve GTS' right to indemnity from Fund property that exists at general law and under the Fund Trust Deed;[63]
(c)in the absence of the BATA Novation Indemnities, the novation or assignment of the contractual arrangements would not be agreed between GTS and GSS. If the novation or assignment was not agreed, the relevant agreements would need to be terminated by GTS and re-negotiated by GSS. The cost and expense of this termination and renegotiation would ultimately be borne by the members of the Fund.[64]

4 Payments and indemnity under the SSPA

[62]Ibid, [95].

[63]Ibid, [97].

[64]Ibid, [99].

The SSPA is between GGH and Future Promoter. Neither GTS nor ETSL is a party, and neither GTS nor ETSL was involved in the negotiation of the agreement or the arrangements to which it relates.[65]
[65]Ibid, [101], 496–546 (SSPA).
The SSPA provides for GGH to sell the shares in GSS to Future Promoter for a purchase price comprised of substantial cash consideration plus or minus any adjustment amounts for GSS liabilities, employee entitlements, and pre-payments (Purchase Price).[66]
[66]Ibid, [102]. See 496, 509 (clause 4.1 of the SSPA). See also 500, 503 (definitions in clause 1.1 of the SSPA for ‘Purchase Price’, ‘Completion Payment’, and ‘Cash Consideration’).
The payment of the Purchase Price by Future Promoter to GSS is the subject of the orders sought in paragraph 5 of the Originating Motion.
In addition, the SSPA provides for Future Promoter to indemnify GGH and GGH’s related entities, which includes GTS, for any loss suffered or incurred by a breach of Future Promoter’s warranties under the SSPA. To the extent that such indemnified loss would otherwise be recoverable by GTS from the Fund under the Trust Deed, the indemnity would avoid such losses being borne by Fund members.[67]
[67]Ibid, [104]. See 496, 519 (clause 10.2 of the SSPA).
This indemnity is the subject of the orders sought in paragraph 6 of the Originating Motion.

5 Indemnities under the Sponsor and Promoter Agreement

The Sponsor and Promoter Agreement is between ETSL (as the new trustee of the Fund) and GSS. GTS is not a party to this agreement and was not involved in the negotiation of the agreement or the arrangements to which it relates.[68] The Sponsor and Promoter Agreement is predicated on GSS having been appointed as the Sponsor of the Fund under the Fund Trust Deed.[69]
[68]Ibid, [109], 628–671 (Sponsor and Promoter Agreement).
[69]Ibid, [110]. See 628, 638–639 (clause 2 of the Sponsor and Promoter Agreement).
Under the Sponsor and Promoter Agreement, GSS is also appointed as the Promoter of the Fund. As Promoter, GSS would provide a number of services including the marketing and sales function of the Fund, the training of staff, and preparing and implementing a business plan for the Fund. ETSL agrees to provide trustee services and to consult GSS before taking various specified actions, and to pay GSS fees for GSS’ Promoter services.[70]
[70]Ibid, [111]. See 628, 641–643 (clauses 5, 6 and 7 of the Sponsor and Promoter Agreement).
The Sponsor and Promoter Agreement provides for indemnities as between GSS and ETSL, which are summarised in paragraphs 112–113 of the Everett Affidavit, and they are the subject of the orders sought in paragraph 7 of the Originating Motion.[71]

6 Indemnities under the Investment Management and Advisory Agreement

[71]Ibid, 628, 650–651 (clauses 17.1 and 17.4 of the Sponsor and Promoter Agreement).

The Investment Management and Advisory Agreement is between ETSL (as the new trustee of the Fund) and Future Super Investment Services. GTS is not a party to this agreement and was not involved in the negotiation of the agreement or the arrangements to which it relates.[72]
[72]Ibid, [115], 673–725 (Investment Management and Advisory Agreement).
Under the Investment Management and Advisory Agreement, Future Super Investment Services is appointed as the investment manager of the Fund in return for a management fee paid by ETSL.[73]
[73]Ibid, [116]. See 673, 682 (clauses 2.1 and 7 of the Investment Management and Advisory Agreement. See also 673, 691-692 (clause 7 of the Investment Management and Advisory Agreement).
The Investment Management and Advisory Agreement provides for indemnities as between Future Super Investment Services and ETSL, which are summarised in paragraphs 117–118 of the Everett Affidavit, and they are the subject of the orders sought in paragraph 8 of the Originating Motion.[74]

7 Fees and indemnities under the Strategic Alliance Agreement

[74]See, Ibid, 673, 689–690, 691 (clauses 5.1, 5.2, 6.5 and 8.2 of the Investment Management and Advisory Agreement).

The Strategic Alliance Agreement is between GGH, the Pharmacy Guild and Future Group. Neither GTS nor ETSL is a party to this agreement, and neither GTS nor ETSL was involved in the negotiation of the agreement or the arrangements to which it relates.[75]
[75]Ibid, [120], 547–582 (Strategic Alliance Agreement).
The Strategic Alliance Agreement sets out the arrangements to be put in place between GGH, the Pharmacy Guild and Future Group in respect of facilitating the promotion of the Fund after the Transaction. This includes Future Group arranging for GSS to appoint GGH as distributor of the Fund, and ensuring that GSS will pay (or Future Group will pay on behalf of GSS) the Distribution Service Fee to GGH.[76]
[76]Ibid, [121], 547, 562 (Distribution Fee, set out in clause 3.6 of the Strategic Alliance Agreement).
The Distribution Service Fee is the subject of the orders sought in paragraph 9(a) of the Originating Motion.
The Strategic Alliance Agreement also provides for indemnities as between GGH, the Pharmacy Guild and Future Group and their related bodies corporate which includes GTS. These indemnities are summarised in paragraph 122 of the Everett Affidavit, and they are the subject of the orders sought in paragraph 9(b) of the Originating Motion.[77]
F.SECTION 180 – MENS REA
[77]Ibid, 547, 574 (clause 10 of the Strategic Alliance Agreement).
As to the requisite mental element for the offence, Stevenson J in MLC Investments held that that the provisions require the establishment of mens rea.[78] As to the requisite mens rea, his Honour considered whether a corrupt purpose is an element of the statutory offence as, if it is, the provisions were simply not engaged as MLC did not have any corrupt purpose, and there would be no call for the Court to intervene.
[78]MLC Investments [2022] NSWSC 1541, [17]–[31].
His Honour concluded that a corrupt purpose is not an element of the statutory offence in relation to s 249E of the NSW provisions. In Diversa, Delany J agreed with Stevenson J’s reasoning, and held that a corrupt purpose is not an element of the statutory offence in relation to s 180,[79] noting that ‘if a corrupt purpose were required to be established it would be very difficult to contemplate any circumstance in which it would be appropriate for the Court to give the assent for which the section provides.’[80] I agree that this is the correct interpretation of s 180.
[79]Diversa [2023] VSC 279, [33] –[39].
[80]Ibid, [39].
The consequence of this interpretation in combination with the broad language of s 180 is that the provisions may capture a relatively broad range of conduct or proposed conduct. Given the criminal consequences of any such conduct falling foul of the provisions in s 180, GTS submits that it is appropriate for it to take a conservative view and to accept for the purposes of this application that the proposed indemnities and other payments described below may fall within the ambit of the section, and to seek the Court’s assent to that conduct.
It should be noted that Stevenson J’s conclusion in MLC Investments that a corrupt purpose is not an element of the offence under s 249E the Crimes Act 1900 (NSW) has led to a recent amendment of that provision to introduce a requirement that the relevant conduct must be ‘corrupt’ in order to amount to an offence.[81] The NSW Government’s Statement of Public Interest described the purpose of this amendment as follows:
[81]See the Crimes Amendment (Corrupt Benefits for Trustees) Act 2023 (NSW), which took effect from 20 September 2023, and which operates retrospectively.
The Crimes Amendment (Corrupt Benefits for Trustees) Bill 2023 (the Bill) amends the Crimes Act 1900 (Crimes Act) to expressly impose a requirement for 'corrupt' conduct to establish the offence of providing corrupt benefits in return for the appointment of a person as trustee under s249E.
Currently, s249E of the Crimes Act creates a criminal offence if a person entrusted with property receives or solicits, or if another person offers or gives that person, a benefit as an inducement or reward for the appointment of any person to be entrusted with the property without the consent of the beneficiaries or the Supreme Court of NSW.
The amendments are in response to concerns expressed by stakeholders following recent decisions by the NSW Supreme Court which found that an offence under s249E can be made out without proof of a corrupt purpose.1 In 2022, the NSW Supreme Court found in Application of MLC Investments Limited [2022] NSWSC 1541 that s249E does not require a dishonest or corrupt purpose for the offence to be made out and that the only relevant mental element to the offence is an intent to give or receive a benefit, without consent, as an inducement or reward for a person to be entrusted with property.
As a result of this decision, a large number of routine, good faith transactions, may potentially be illegal under the Crimes Act and subject to penalties of up to seven years imprisonment. The amendments contained in the Bill are a response to these concerns and were developed in consultation with legal stakeholders.
The objects of this bill are to amend the Crimes Act to:
•Expressly require 'corrupt' conduct to establish the offence under s249E of the Crimes Act of receiving or soliciting a benefit from a person as an inducement or reward for the appointment of any other person to be a person entrusted with property;
•Remove the requirement to obtain the consent of beneficiaries or the Supreme Court of NSW where a 'benefit' is provided to a person entrusted with property as an inducement or reward or the appointment of another person to be entrusted with property;
•Remove the requirement for the Attorney General's consent to commence proceedings for an offence under s249E; and
•Make these changes apply retrospectively to conduct that would otherwise have breached the current s249E as well as the aiding and abetting offence in s249F and the offence of concealing a serious indictable offence in s316.
G.THE DISCRETION TO ASSENT
The considerations relevant to the Court giving its assent under the relevant offence provisions were set out above at [42] and for convenience are repeated here:[82]
The evident purpose of the Provisions is to prevent a trustee from being persuaded by the prospect of personal gain to exercise its power to appoint a substitute trustee. It would, therefore, normally be appropriate for the Court to give its consent to the proposed conduct if it was satisfied that the appointment of the new trustee was in the best interests of beneficiaries or if it was satisfied that the proposed conduct did not provide an inducement to the transferor to act other than in the best interests of the beneficiaries. In either case, the object of the prohibition contained in the Provisions would not be undermined.
[82]BTFM [2022] NSWSC 401, [18]; MLC Investments [2022] NSWSC 1541, [40]; Diversa [2023] VSC 279, [7].
As to the first of these matters, I am satisfied that it is likely that the appointment of ETSL is in the best interests of the beneficiaries, for the reasons set out above.
As to the second matter, I am satisfied that the various indemnities and proposed payments referred to above will not provide an inducement to either of GTS or ETSL to act otherwise than in the best interests of the beneficiaries. In particular, as regards the DORA Indemnities:
(a)the indemnity given by ETSL to GTS reflects the existing position at general law where GTS would continue to enjoy a right of indemnity post-retirement in respect of its past conduct as trustee;
(b)the indemnity given by GTS to ETSL preventing those liabilities from being borne by members of the Fund;
(1)in the absence of the DORA Novation Indemnities, members of the Fund would bear the cost and expense of the termination of the relevant agreements by GTS;
(c)the GGH Indemnities and Obligations ensure that, in the event of an insured claim against GTS by members of the Fund, and where GTS was unable to pay the excess and costs, these amounts would still be recoverable by members of the Fund against GGH;
(d)as regards the indemnity by GGH of ETSL in respect of any Fund liability that arises in connection with any GGH breach of the Services Agreement between GGH and GTS, this ensures that Fund members retain a right to recover for any such indemnified losses;
(e)the GGH Cost Payments prevent these costs from being borne by members of the Fund;
(f)but for the GSS BATA Indemnities, GTS would be indemnified from Fund property, and members would therefore ultimately bear any loss;
(g)the GTS BATA Indemnities preserves GTS’ right to indemnity from Fund property that exists at general law and under the Fund Trust Deed;
(h)in the absence of the BATA Novation Indemnities, members of the Fund would bear the cost and expense of the termination of the relevant agreements by GTS; and
(i)as regards the indemnity under the SSPA by Future Promoter of GGH for any loss suffered or incurred by a breach of Future Promoter’s warranties under the SSPA, the indemnity would avoid such losses being borne by Fund members.
Further and in any event, because each of the indemnities and proposed payments form part of a wider transaction that is in the best interests of members, I am satisfied that they will not provide an inducement to GTS to act otherwise than in the best interests of the beneficiaries, and accordingly it is appropriate for the Court to provide its assent in the form of the orders sought in the Originating Motion.[83]
H.POWER TO MAKE THE ORDERS
[83]MLC Investments [2022] NSWSC 1541, [47].
GTS’ originating motion seeks orders pursuant to s 180 or alternatively pursuant to r 54.02 of the Rules, and in each case pursuant to the similarly worded legislation in Queensland and Western Australia. Rules 54.01 and 54.02 state as follows:
54.01 Definitions
In this Order—
administration proceeding means a proceeding for the administration of an estate or the execution of a trust under the direction of the Court;
…
54.02 Relief without general administration
(1)A proceeding may be brought for any relief which could be granted in an administration proceeding and a claim need not be made for the administration or execution under the direction of the Court of the estate or trust in respect of which the relief is sought.
(2)Without limiting paragraph (1), a proceeding may be brought for—
(c)an order—…
(ii)directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.[84]
[84]Rule 54.03(c) provides that persons having a beneficial interest under the trust need not be made parties to a proceeding seeking judicial advice.
Rule 54.02 confers on the Court the power to give directions to trustees, reflecting the long-standing power of the court to make such orders.[85]
[85]See Application by United Super Pty Ltd atf Construction and Building Unions Superannuation Fund [2021] NSWSC 1679 (Henry J), [61]; HEST [2022] QSC 221, [56] – [61].
I am satisfied that this Court is, by s 180, directly empowered to make the orders providing assent. This follows from a plain reading of s 180, and is the approach adopted by Ball J in BTFM and preferred by Delany J in Diversa.[86] Nonetheless, given that there is a divergence of opinion as to whether s 180 confers a new discretion on the Court or only invokes the Court’s existing statutory power to give directions to a trustee,[87] and given that it is not necessary in this case to form a final opinion as to the correct jurisdictional basis for the grant of assent, I will adopt the approach of Delany J in Diversa and make orders expressed in the alternative (see below at [92]).
[86]BTFM [2022] NSWSC 401, [15]; Diversa [2023] VSC 279, [43]–[45].
[87]BTFM [2022] NSWSC 401, [15]; MLC Investments [2022] NSWSC 1541, [37]. Notably however, the orders made in MLC Investments were expressed to be made pursuant to s 249E of the Crimes Act 1900 (NSW), and not on any alternative basis.
A further question is whether this Court has the power to make the orders sought in relation to the provisions in Western Australia and Queensland which are equivalent to s 180[88] and to r 54.02[89] of the Rules.
[88]Being s 63 of the Trustee Act 1925 (NSW), s 92 of the Trustee Act 1962 (WA), s 96 of the Trusts Act 1973 (Qld).
[89]Being s 535 of the Criminal Code Act Compilation Act 1913 (WA), s 442F of Sch 1 to the Criminal Code Act 1899 (Qld).
In the BTFM case in New South Wales, Ball J explained the position as follows:
Fourth, this Court plainly has power to make the orders sought by BTFM. It is given that power directly by s 249E(2)(b) of the Crimes Act 1900 (NSW). In the case of the other provisions, it is given that power by a combination of the substantive provision which invests the power to give consent in the local Supreme Court and a combination of s 4 of the local Jurisdiction of Courts (Cross-vesting) Act 1987 and s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). Section 4 of the other relevant State cross-vesting Acts relevantly provide that the Supreme Courts and State Family Courts of another State or Territory has and may exercise original and appellate jurisdiction with respect to State matters, other than in respect of criminal matters.
Section 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) relevantly provides:[90]
[90]Section 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) is in the same terms.
Exercise of jurisdiction pursuant to cross-vesting laws
The Supreme Court:
(a) may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Commonwealth or a State relating to cross-vesting of jurisdiction, and
(b)may hear and determine a proceeding transferred to that court under such a provision.
“State matter” is relevantly defined to mean a matter “in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State …”.
The Cross-vesting legislation does not give another State court jurisdiction with respect to “criminal matters”. That expression is not defined in the Acts. In my opinion, it must be interpreted as a reference to criminal prosecutions. It does not extend to an application for consent to conduct that would, absent the consent, be criminal. The application for that consent is an application for a decision which determines whether a matter is a criminal one. It is not itself a criminal matter.[91]
[91]BTFM [2022] NSWSC 401, [15]-[17].
I am satisfied that this approach should be applied in the present case, consistent with the approach adopted by Stevenson J in MLC Investments and Delany J in Diversa,[92] so that orders are also made in relation to the cognate provisions in Western Australia and Queensland, pursuant to s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) on the one hand and s 4 of each of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) and Jurisdiction of Court (Cross-vesting) Act (Qld) on the other.
I.ORDERS
[92]Diversa [2023] VSC 279, [50].
For the reasons set out above, the Court will make the following orders:
(1)The orders in order 2 below are made pursuant to:
(a)section 180 of the Crimes Act 1958 (Vic);
(b)section 535 of the Criminal Code Act Compilation Act 1913 (WA), section 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and section 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA); and
(c)section 442F of Sch 1 to the Criminal Code Act 1899 (Qld), section 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and section 4 of the Jurisdiction of Court (Cross-vesting) Act 1987 (Qld),
alternatively pursuant to:
(d)rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic);
(e)section 92 of the Trustee Act 1962 (WA), section 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and section 4 of the Jurisdiction of Court (Cross-vesting) Act 1987 (WA); and
(f)section 96 of the Trusts Act 1973 (Qld), section 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and section 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld).
(2)The Court consents and assents to:
(a)the plaintiff soliciting and receiving or offering and giving (as appropriate) the DORA Indemnities (described at paragraph 73 of the affidavit of Greg Everett affirmed on 14 September 2023 (‘Everett Affidavit’)) and the DORA Novation Indemnities (described at paragraph 77 of the Everett Affidavit);
(b)Equity Trustees Superannuation Limited (‘ETSL’) soliciting and receiving or offering and giving (as appropriate) those DORA Indemnities and Novation Indemnities;
(c)Guild Group Holdings Limited (‘GGH’) offering or giving the GGH Indemnities and Obligations (described at paragraph 79 of the Everett Affidavit) and to ETSL and the plaintiff soliciting or receiving those GGH Indemnities and Obligations;
(d)GGH offering or giving and to the plaintiff and ETSL soliciting or receiving the benefit of the GGH Costs Payments (described at paragraphs 82 to 84 of the Everett Affidavit);
(e)the plaintiff soliciting and receiving the purchase price under the BATA (described at paragraph 93 of the Everett Affidavit);
(f)the plaintiff soliciting and receiving or offering and giving (as appropriate) the GSS BATA Indemnities (described at paragraph 94 of the Everett Affidavit), the GTS BATA Indemnities (described at paragraph 96 of the Everett Affidavit) and the BATA Novation Indemnities (described at paragraph 98 of the Everett Affidavit);
(g)Guild Super Services Pty Ltd (‘GSS’) soliciting and receiving or offering and giving (as appropriate) those GSS BATA Indemnities, GTS BATA Indemnities and BATA Novation Indemnities;
(h)the plaintiff soliciting the purchase price under the SSPA for GGH (described at paragraphs 101 to 105 of the Everett Affidavit);
(i)Future Promoter Holdings Pty Ltd (‘Future Promoter’) offering or giving the indemnity to the plaintiff under the SSPA described at paragraph 104 of the Everett Affidavit, and to the plaintiff soliciting or receiving that indemnity;
(j)ETSL soliciting and receiving or offering and giving (as appropriate) the indemnities under the Sponsor and Promoter Agreement (described at paragraphs 112 to 113 of the Everett Affidavit), and to GSS offering and giving those indemnities;
(k)ETSL soliciting and receiving or offering and giving (as appropriate) the indemnities under the Investment Management and Advisory Agreement (described at paragraphs 117 to 118 of the Everett Affidavit), and to Future Super Investment Services Pty Ltd (‘FSIS’) soliciting and receiving or offering and giving (as appropriate) those indemnities;
(l)the plaintiff soliciting the Distribution Service Fee to be paid by GSS to GGH under the Strategic Alliance Agreement (described at paragraph 121 of the Everett Affidavit); and
(m)the plaintiff soliciting and receiving and Future Group offering and giving the indemnity under the Strategic Alliance Agreement (described at paragraph 122 of the Everett Affidavit).
(3)Until further order of the Court, the matters identified in Annexure A to this Order are not to be disclosed (by publication or otherwise) to any person or entity, except to:
(a)the judge case-managing and/or hearing the proceeding or any appeal therefrom; and
(b)the plaintiff, GGH, GSS, ETSL, Future Group, Future Promoter, FSIS, the Australian Prudential Regulation Authority and their respective legal representatives.

ANNEXURE A

1In the affidavit of Greg Everett affirmed on 14 September 2023:
(a)all percentage figures, dollar amounts, basis point figures and dates set out in paragraph 66(a);
(b)all dollar amounts set out in paragraph 81;
(c)the dollar amount set out in paragraph 82(c);
(d)the dollar amount set out in paragraph 93; and
(e)the second sentence of paragraph 93.

In Exhibit GE-1 to the affidavit of Greg Everett affirmed on 14 September 2023:
(a)in the Revised Final Offer letter dated 13 June 2017 which commences at page marked 335, the dollar amounts and the basis point figure set out on the page marked 339;
(b)in the letter from K&L Gates to the Directors of the plaintiff dated 29 August 2023 which commences at page marked 345, all percentage figures, dollar amounts and basis point figures set out on the pages marked 347, 348, 349 and 352;
(c)in the resolution of the Board of Directors of the plaintiff dated 1 September 2023 which commences at page marked 356, the dollar amount set out on the page marked 357;
(d)in the Deed of Retirement and Appointment executed by the parties on 1 September 2023 which commences at the page marked 358:
(i)the dollar amount set out on the page marked 363;
(ii)the email addresses set out on the page marked 383;
(e)in the proposed Implementation Deed which commences at the page marked 386:
(i)the email addresses set out on the page marked 388;
(ii)the date set out in the definition of ‘Implementation Date’ on the page marked 408;
(iii)the date set out in the definition of ‘Sunset Date’ on the page marked 409;
(f)in the proposed Strategic Alliance Agreement which commences at page marked 414:
(i)all figures appearing in the column headed ‘Growth Target’ in the table set out on the page marked 429;
(ii)all dollar amounts set out on the pages marked 429, 430 and 437;
(iii)the email addresses set out on the page marked 443;
(g)in the proposed Business and Asset Transfer Agreement which commences at the page marked 450:
(i)the email address set out on the page marked 452;
(ii)the date set out in the definition of ‘End Date’ on the page marked 455;
(iii)the dollar amount set out on the page marked 462;
(iv)the dollar amount set out on the page marked 481;
(v)the names of the employees of the plaintiff set out on the page marked 485;
(h)in the proposed Share Sale and Purchase Agreement which commences at the page marked 496:
(i)the email addresses set out on the page marked 498;
(ii)the dollar amount set out in the definition of ‘Cash Consideration’ on the page marked 500;
(iii)the date set out in the definition of ‘Sunset Date’ on the page marked 505;
(iv)all percentage figures set out on the page marked 539;
(v)all percentage figures, dollar amounts and basis point figures set out on the page marked 546;
(i)in the Strategic Alliance Agreement executed by the parties on 1 September 2023 which commences at the page marked 547:
(i)all figures appearing in the column headed ‘Growth Target’ in the table set out on the page marked 562;
(ii)all dollar amounts set out on the pages marked 562, 563 and 570;
(iii)the email addresses set out on the page marked 576;
(j)in the Heads of Agreement executed by the parties and dated 1 September 2023 (Heads of Agreement) which commences at the page marked 583:
(i)the date set out in the definition of ‘Implementation Date’ on the page marked 588;
(i)the date set out in the definition of ‘Sunset Date’ on the page marked 589;
(ii)the dollar amounts and basis point figures set out on the page marked 593;
(iii)the email addresses and phone numbers set out on the page marked 597;
(k)in the proposed Deed of Retirement and Appointment which is Schedule 2 to the Heads of Agreement and which commences at the page marked 598:
(i)the dollar amount set out on the page marked 604;
(ii)the email addresses set out on the page marked 624;
(l)in the proposed Sponsor and Promoter Agreement which is Schedule 3 to the Heads of Agreement and which commences at the page marked 627:
(i)the email addresses set out on the page marked 656;
(ii)all percentage figures and dollar amounts set out on the page marked 658;
(iii)the dollar amount set out on the page marked 659;
(iv)all percentage figures set out on the page marked 663;
(m)in the proposed Investment Management and Advisory Agreement which is Schedule 4 to the Heads of Agreement and which commences at the page marked 672:
(i)the dollar amount set out on the page marked 690;
(ii)the email addresses and phone number set out on the page marked 708;
(iii)the percentage figure set out on the page marked 711;
(iv)all percentage figures set out on the page marked 720;
(n)in the proposed Guild Retirement Fund Trust Amending Deed which is Schedule 5 to the Heads of Agreement and which commences at the page marked 726:
(i)the percentage figures and dollar amount set out on the page marked 750; and
(ii)the percentage figure and dollar amount set out on the page marked 752.
In the Outline of Submissions filed by the plaintiff dated 5 October 2023:
(a)all percentage figures, dollar amounts, basis point figures and dates set out in paragraph 51(a) on page 13;
(b)the dollar amount set out in paragraph 63(c) on page 16;
(c)the dollar amount set out in paragraph 67 on page 16; and
(d)the second sentence of paragraph 67 on page 16.

[2023] VSC 629

30 October 2023