Tuftevski v Total Risk Management Pty Ltd - [2009] NSWSC 315

CITATION: Tuftevski v Total Risks Management Pty Ltd [2009] NSWSC 315

HEARING DATE(S): 22, 23, 24 September 2008, 14, 15 October 2008 (Submissions closed 28 October 2008)

JUDGMENT DATE :
27 April 2009

JUDGMENT OF: Smart AJ

DECISION: See paragraph 184.

CATCHWORDS: Employer - Employee Superannuation Fund - Claim Based on Trust Deed construed according to Victorian law - absence of bona fide inquiry and genuine consideration - Rules of Natural Justice inapplicable - Trustee not disclosing thrust of adverse mateial to employee - no opportunity to meet it - execution of Trust by Court due to behaviour of Trustee - limitations defences rejected - need for law reform - absurdity of using Trust law propounded in former times for different situations in employer/employee relations

LEGISLATION CITED: Limitation Act 1969 (NSW)
Limitation of Actions Act 1958 (Vic).
Superannuation Industry (Supervision) Act 1993 (Cth)

CATEGORY: Principal judgment

CASES CITED: Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173
Flegeltaub v Telstra Super Pty Ltd (3 April 2000), BC 2000 01407
Karger v Paul 1984 VR 161
McPhail & Ors v Doulton & Ors [1971] AC 424
Rapa v Patience (Unreported, NSWSC, 4 April 1985, McLelland J – BC 8500 888)
Sayseng v Kellog Superannuation Pty Ltd & Anor [2003] NSWSC 945
Telstra v Flegeltaub [2000] 2 VR 276
The Crown v McNeil (1932) 31 CLR 76
Tonkin & Ors v Western Mining Corporation Ltd & Anor [1998] WASCA 101
Vidovic v Email Superannuation Pty Ltd (Unreported, NSWSC, 3 March 1995, Bryson J), BC9504297
Williams v The Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497

PARTIES: Peter Tuftevski (Plaintiff)
Total Risks Managment Pty Limited as Trustee of the BHP Billiton Superannuation Fund (Defendant)

FILE NUMBER(S): SC 1026/07

COUNSEL: BW Rayment QC / M Gollan (Plaintiff)
NJ Kidd (Defendant)

SOLICITORS: Firths - The Compensation Lawyers (Plaintiff)
Allens Arthur Robinson (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Smart AJ

Monday 27 April 2009

1026/07 Peter Tuftevski v Total Risks Management Pty Ltd As Trustee of the BHP Billiton Superannuation Fund

JUDGMENT

1 Introduction

2 By letter of 24 February 2006 the Fund acknowledged receipt of a completed complaint form from the plaintiff and medical report from Dr I Gotis-Graham, and referred to a previous complaint lodged against the rejection of his…

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: [2009] NSWSC 315
Decision Date: 27 April 2009

CaseChat Overview and Summary

In the matter of Tuftevski v Total Risk Management Pty Ltd, the Federal Court was called upon to address a dispute between an employee, Tuftevski, and his former employer, Total Risk Management Pty Ltd, concerning the management and distribution of superannuation funds. The central issue revolved around whether the employer had properly adhered to the terms of a superannuation trust deed when terminating the employee's employment and subsequently distributing the superannuation benefits. Tuftevski contended that the employer failed to act in accordance with the trust deed, leading to an improper distribution of his superannuation benefits.

The legal issues before the court included the interpretation of the trust deed, the application of Victorian law in construing the terms of the deed, and whether the employer's actions were in breach of the principles of natural justice. Specifically, the court had to determine whether the employer's failure to disclose critical adverse information to Tuftevski and provide an opportunity to respond constituted a breach of trust and natural justice. Additionally, the court needed to consider the applicability of certain defences raised by the employer, such as limitations and whether the trust deed itself was subject to reform.

The court found that the employer had not acted in accordance with the trust deed, particularly in failing to provide Tuftevski with an opportunity to respond to adverse information that could have affected his superannuation benefits. The employer's actions were deemed to contravene the principles of natural justice as the employee was not given a fair opportunity to address the concerns raised. Consequently, the court held that the employer's conduct warranted the execution of the trust by the court. The employer's defences, including the argument of limitations and calls for law reform, were rejected by the court. The decision underscored the absurdity of applying outdated trust law principles to modern employer-employee relations, highlighting the need for legislative reform to better address the complexities of contemporary employment practices.

Orders