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Swift v SAS Trustee Corporation

Swift v SAS Trustee Corporation

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New South Wales

Court of Appeal

CITATION: Swift v SAS Trustee Corporation [2010] NSWCA 182

HEARING DATE(S): 15 April 2010

JUDGMENT DATE:
3 August 2010

JUDGMENT OF: Allsop P at [1]; Basten JA at [2]; Young JA at [51]

DECISION: The appeal is dismissed with costs.

CATCHWORDS: APPEAL- statutory appeal to District Court- role of judge on merit review of decision of trustee- whether primary judge failed to take into account relevant consideration of "the best interests of appellant" and the absence of prejudice to other beneficiaries- whether duty of trustee to exercise discretion favourably to applicant- District Court Act 1973, s 142J- consideration of "the best interests of appellant" and the absence of prejudice to other beneficiaries- whether duty of trustee to exercise discretion favourably to applicant. SUPERANNUATION- police superannuation- Police Regulation (Superannuation) Act 1906 s 9A(4)- backdating of superannuation allowance to date of retirement-application made some 20 years after date of resignation- whether primary judge took into account irrelevant considerations or disregarded relevant considerations. WORDS AND PHRASES- "proper, genuine and realistic consideration"- "real merits and justice of the case".

LEGISLATION CITED: Compensation Court Repeal Act 2002
District Court Act 1973, ss 142G, 142J, 142M, 142N
Migration Act 1958 (Cth)
Police Act 1990, s 14(1)
Police Regulation (Superannuation) Act 1906, ss 9A, 10, 10B, 21
Police Regulation (Superannuation) Amendment Act 1974, s 9(g)(i)
Superannuation Administration Act 1996, ss 49, 51
Superannuaation Legislation Amendment Act 2006, Sch 1.2
Trustee Act 1925

CATEGORY: Principal judgment

CASES CITED: Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616
Day v SAS Trustee Corporation [2009] NSWCA 222
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Karger v Paul [1984] VR 161
Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123
Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Rapa v Patience (M H McLelland J, 4.4.1985, unreported)
Re Whitehouse [1982] Qd R 196
SAS Trustee Corporation v Pearce [2009] NSWCA 302
Spanos v Lazaris [2008] NSWCA 74
Watson v Qantas Airways Ltd [2009] NSWCA 322
Workers Compensation (Dust Diseases) Board v Smith [2010] NSWCA 19

PARTIES: Terry George Swift (Appellant)
SAS Trustee Corporation (Respondent)

FILE NUMBER(S): CA 2009/298454

COUNSEL: P Dodson and N Broadbent (Appellant)
T Ower (Respondent)

SOLICITORS: Oates & Smith Solicitors (Appellant)
Rod Blume - SAS Trustee Corporation (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): RJ00243/08

LOWER COURT JUDICIAL OFFICER: C Armitage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWCA 182
Decision Date: 3 August 2010

CaseChat Overview and Summary

The appeal concerned a statutory appeal to the District Court of New South Wales, brought by the appellant, Swift, against a decision of the SAS Trustee Corporation (the respondent). The dispute arose from the respondent's refusal to backdate a superannuation allowance to the appellant's date of retirement, an application made approximately 20 years after the appellant's resignation.

The primary legal issues before the court were whether the primary judge had erred in their review of the trustee's decision. Specifically, the court considered whether the primary judge failed to adequately take into account the "best interests of the appellant" and the absence of prejudice to other beneficiaries, and whether the trustee owed a duty to exercise its discretion favourably to the applicant. The court also examined whether the primary judge had considered irrelevant factors or disregarded relevant ones in assessing the application under section 9A(4) of the *Police Regulation (Superannuation) Act 1906*.

The Court of Appeal affirmed the primary judge's decision, finding that the trustee's decision had been made after a "proper, genuine and realistic consideration" of the "real merits and justice of the case." The court held that the trustee was not obliged to exercise its discretion favourably to the applicant and that the primary judge had correctly applied the relevant legal principles in reviewing the trustee's exercise of discretion.

The appeal was dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Swift v SAS Trustee Corporation [2010] NSWCA 182
HEARING DATE(S):	15 April 2010
JUDGMENT DATE:	3 August 2010
JUDGMENT OF:	Allsop P at [1]; Basten JA at [2]; Young JA at [51]
DECISION:	The appeal is dismissed with costs.
CATCHWORDS:	APPEAL- statutory appeal to District Court- role of judge on merit review of decision of trustee- whether primary judge failed to take into account relevant consideration of "the best interests of appellant" and the absence of prejudice to other beneficiaries- whether duty of trustee to exercise discretion favourably to applicant- District Court Act 1973, s 142J- consideration of "the best interests of appellant" and the absence of prejudice to other beneficiaries- whether duty of trustee to exercise discretion favourably to applicant. SUPERANNUATION- police superannuation- Police Regulation (Superannuation) Act 1906 s 9A(4)- backdating of superannuation allowance to date of retirement-application made some 20 years after date of resignation- whether primary judge took into account irrelevant considerations or disregarded relevant considerations. WORDS AND PHRASES- "proper, genuine and realistic consideration"- "real merits and justice of the case".
LEGISLATION CITED:	Compensation Court Repeal Act 2002 District Court Act 1973, ss 142G, 142J, 142M, 142N Migration Act 1958 (Cth) Police Act 1990, s 14(1) Police Regulation (Superannuation) Act 1906, ss 9A, 10, 10B, 21 Police Regulation (Superannuation) Amendment Act 1974, s 9(g)(i) Superannuation Administration Act 1996, ss 49, 51 Superannuaation Legislation Amendment Act 2006, Sch 1.2 Trustee Act 1925
CATEGORY:	Principal judgment
CASES CITED:	Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616 Day v SAS Trustee Corporation [2009] NSWCA 222 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Karger v Paul [1984] VR 161 Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Rapa v Patience (M H McLelland J, 4.4.1985, unreported) Re Whitehouse [1982] Qd R 196 SAS Trustee Corporation v Pearce [2009] NSWCA 302 Spanos v Lazaris [2008] NSWCA 74 Watson v Qantas Airways Ltd [2009] NSWCA 322 Workers Compensation (Dust Diseases) Board v Smith [2010] NSWCA 19
PARTIES:	Terry George Swift (Appellant) SAS Trustee Corporation (Respondent)
FILE NUMBER(S):	CA 2009/298454
COUNSEL:	P Dodson and N Broadbent (Appellant) T Ower (Respondent)
SOLICITORS:	Oates & Smith Solicitors (Appellant) Rod Blume - SAS Trustee Corporation (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	RJ00243/08
LOWER COURT JUDICIAL OFFICER:	C Armitage…