Thurston and Loomis and Ors

This matter came before Forrest J concerning R Super Pty Ltd, the trustee of the R Superannuation Fund, and its directors, Mr Loomis and Ms Thurston. The dispute centred on the trustee's non-compliance with statutory and regulatory requirements, preventing the fund from being a complying fund. The court was tasked with determining the necessary steps to rectify this non-compliance and ensure the fund's compliance with the law.

The court was required to determine how to address the trustee's failure to lodge financial statements and tax returns for the financial years ending 30 June 2013, 2014, 2015, and 2016. Furthermore, the court needed to identify and classify specific transactions involving the fund as loans to members, establish a mechanism for repayment with interest, and direct the process for rectifying the fund's non-compliant status. The court also had to consider the role and responsibilities of appointed professionals in achieving these objectives and the reporting obligations to the Australian Tax Office.

Forrest J ordered that Mr BG of E Accountants be appointed to finalise the fund's financial statements and tax returns, and to address the trustee's non-compliance. Specific transactions, including funds used for property development and a sum transferred to Mr Loomis's personal account, were to be treated as loans to members, repayable with interest. Mr BG was empowered to seek information, but final decisions rested with him. Mr BG was also directed to instruct Mr RO, a solicitor, to withdraw funds from a specified account to repay these loans and associated interest, and to cover any tax liabilities, penalties, or interest owed to the Australian Tax Office, as well as Mr BG's professional fees. The financial statements were to be audited, and Mr BG was to report the remedial steps taken to the Australian Tax Office, requesting their consideration of the matter. Upon conclusion of dealings with the Australian Tax Office, Mr BG was to file a final report.