Williams v Williams

[2023] QSC 90

SUPREME COURT OF QUEENSLAND

CITATION:

Williams v Williams & Anor [2023] QSC 90

PARTIES:

Gayle Dianne Williams

(Applicant)

v
Paul Francis Williams

(First Respondent)

And

Mark Anthony Williams

(Second Respondent)

FILE NO/S:

BS 14803 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2023

JUDGE:

Martin SJA

ORDER:

1.   The Binding Death Benefit Nomination dated 26 March 2018 is invalid.

2.   The parties are to provide submissions as to whether the requirements of the Superannuation Industry (Supervision) Act1993 (Cth) affect the removal and replacement of the current trustees.

3.   I will hear the parties as to costs.

CATCHWORDS:

SUPERANNUATION – BENEFITS – MATTERS AFFECTING ENTITLEMENT TO AND PAYMENT OF – OTHER MATTERS – where a binding death benefit nomination has been made – where the binding death benefit nomination was executed by a member of the fund who is also a trustee – where a second trustee has not been served with the binding death benefit nomination – whether a binding death benefit nomination is valid when it has only been served on one trustee

SUPERANNUATION – TRUSTEES – APPOINTMENT, REMOVAL, ETC – where a trustee has died – where a new trustee is attempted to be appointed – where there is no personal legal representative of the deceased – where trustees are also dependents to the fund and beneficiaries under a will – where trustee alleges a member has been dishonest – whether the trustees are conflicted – whether the trustees should be substituted with independent trustees  

Trusts Act1973 (Qld) s 80

Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122, considered
Cummings v Austin (1902) 28 VLR 347, cited
Miller v Cameron (1936) 54 CLR 572, cited

COUNSEL:

A Fraser for the applicant.
A Muir (Solicitor) for the first and second respondents.

SOLICITORS:

Robbins Watson for the applicant.
Muir Legal for the first and second respondents.

1. Gayle Williams seeks two orders. First, she seeks a declaration as to the validity of a binding death benefit nomination (BDBN) made by her late husband in respect of the death benefit payable from a self-managed superannuation fund. Secondly, she seeks the removal of the current trustee or trustees of the superannuation fund and the appointment of independent professional trustees.

2. The issue for determination on the first order is whether or not notice of the BDBN was given to the trustees in accordance with the superannuation fund governing rules. As to the second order, the issue is whether or not the current trustees have behaved in a way which justifies their removal.

   The parties and their relationships

3. Anthony Vincent Williams died on 28 December 2021. He was survived by the applicant (whom he married in 2019) and his adult sons Paul Francis Williams and Mark Anthony Williams. In the will he executed in 2020, the deceased appointed Mark Williams as his executor. At the date of his death, the deceased had…