Re Narumon Pty Ltd

Case [2018] QSC 185

SUPREME COURT OF QUEENSLAND

CITATION:

Re Narumon Pty Ltd [2018] QSC 185

IN THE MATTER OF:

An application by NARUMON PTY LTD ACN 091 480 983 as trustee for the JOHN GILES SUPERANNUATION FUND established by deed dated 21 February 1992

PARTIES:

NARUMON PTY LTD ACN 091 480 983 as trustee for the JOHN GILES SUPERANNUATION FUND

(Applicant)

FILE NO/S:

BS No 7148 of 2018

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

24 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2018

JUDGE:

Bowskill J

ORDERS:

Orders and declarations proposed in paragraphs [94] and [95] of these reasons, subject to any further submissions

CATCHWORDS:

SUPERANNUATION – PRIVATE SECTOR FUNDS – INTERPRETATION AND CONSTRUCTION – where a deed of variation of the terms of a self-managed superannuation fund was not properly executed by the trustee company, in accordance with s 127 of the Corporations Act 2001 (Cth) – whether a subsequent deed of variation is nevertheless valid and effective

SUPERANNUATION – PRIVATE SECTOR FUNDS – TRUSTEES –  POWERS AND DUTIES – where there is evidence supporting the establishment of a lifetime complying pension, and nomination of a reversionary beneficiary of that pension, but the actual documents cannot be located – whether it is appropriate to grant declaratory relief directing the trustee to give effect to the reversionary pension

SUPERANNUATION – BENEFITS – MATTERS AFFECTING ENTITLEMENT TO AND PAYMENT OF – OTHER MATTERS – where the member of a self-managed superannuation fund had made a binding death benefit nomination which had lapsed prior to the member losing capacity – where the member had appointed attorneys to act for him in relation to financial matters under an enduring power of attorney – whether it is within the scope of the power of the attorneys to execute for the member a document extending the binding death benefit nomination made personally by the member – whether it is within the scope of the power of the attorneys to execute for the member a new binding death benefit nomination

Corporations Act 2001 (Cth), s 127
Superannuation Industry (Supervision) Act 1993 (Cth), ss 10, 31, 55A, 59
Superannuation Industry (Supervision) Regulations 1994 (Cth), regs 6.17A, 6.22
Acts Interpretation Act 1954 (Qld), s 14D
Powers of Attorney Act 1998 (Qld), ss 32, 73 and schedule 2

Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122; (2017) 106 ATR 615
Donovan v Donovan [2009] QSC 26
FSS Trustee Corporation v Eastaugh [2017] VSCA 218
McFadden v Public Trustee for Victoria (1981) 1 NSWLR 15
Munro v Munro [2015] QSC 61; (2015) 306 FLR 93
Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban [2011] QSC 380
Reilly v Reilly [2017] NSWSC 1419
Re Application by Police Association of South Australia [2008] SASC 299; (2008) 102 SASR 215
Re Bundaberg Sugar Superannuation Pty Ltd as trustee of the Bundaberg Sugar Ltd Superannuation Plan [2014] QSC 118
Re Tracey [2016] QCA 194; [2017] 2 Qd R 35
Siahos v J P Morgan…

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Re Narumon Pty Ltd [2018] QSC 185
Case
[2018] QSC 185
Decision Date

CaseChat Overview and Summary

In the case of Re Narumon Pty Ltd, the court was tasked with resolving issues pertaining to the interpretation and validity of a deed of variation concerning a self-managed superannuation fund. The dispute involved the trustee company, Narumon Pty Ltd, and the fund's members. The central question was whether a subsequent deed of variation could be considered valid and effective if the initial deed was not properly executed as required by section 127 of the Corporations Act 2001 (Cth).

The court was required to address several legal issues, including the interpretation of the deed of variation and whether it was valid despite not being executed properly. Additionally, the court had to determine if declaratory relief could be granted to establish a lifetime complying pension and nominate a reversionary beneficiary, despite the inability to locate the relevant documents. The court also considered whether attorneys acting under an enduring power of attorney could extend a lapsed binding death benefit nomination or execute a new nomination on behalf of a member who had lost capacity.

The court found that despite the improper execution of the deed of variation, the subsequent deed was valid and effective, as the intent and substance of the variation were clear and the members were not prejudiced. The court also granted declaratory relief, establishing the pension and nominating the beneficiary based on the evidence presented, despite the documents being unavailable. The court ruled that the attorneys had the authority to extend a lapsed nomination and execute a new nomination, as it fell within the scope of their powers under the enduring power of attorney. The final orders included declarations and directions as proposed in the court's reasons, subject to any further submissions.

Orders

Orders of the court

Orders and declarations proposed in paragraphs [94] and [95] of these reasons, subject to any further submissions

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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