Wareham v Marsella (No 2)

The appeal in Wareham v Marsella (No 2) before the South Australian Supreme Court involved the trustees of a self-managed superannuation fund who sought an indemnity from the trust fund for costs incurred in an unsuccessful appeal. The appeal itself pertained to the trustees' removal and an adverse finding against them, which they sought to challenge. The trustees argued that they were entitled to indemnity costs from the trust fund under the Superannuation Industry (Supervision) Act 1993, as they had acted in the best interests of the trust. The court had to determine whether the trustees' appeal was taken in their personal capacity or in the interests of the trust, which would affect their entitlement to indemnity costs.

The legal issues before the court included whether the trustees were acting in their personal capacity or for the benefit of the trust when they pursued the appeal, and whether they were entitled to indemnity costs under the Superannuation Industry (Supervision) Act 1993. The court considered precedents such as Miller v Cameron and Pope v Pope, which established that indemnity costs are only available when a party acts in the interests of the trust. In this case, the court found that the appeal was taken in the trustees' personal interests, not in the interests of the trust, as they had a personal grievance against the removal decision. Consequently, the court ruled that the trustees were not entitled to indemnity costs from the trust fund.

In reaching its decision, the court emphasised that the appeal was driven by the trustees' personal dissatisfaction with the removal decision, rather than any benefit to the trust. This conclusion was supported by the statutory provisions of the Superannuation Industry (Supervision) Act 1993, which require that indemnity costs be granted only when the party acts in the interests of the trust. Given that the trustees' appeal was self-serving, the court held that they were not entitled to indemnity costs. The court further ordered that the trustees bear their own costs of the appeal.