Cradock v United Super Pty Ltd as Trustee of the Construction and Building Unions Superannuation Fund [2021] FCA 305

Cradock v United Super Pty Ltd as Trustee of the Construction and Building Unions Superannuation Fund [2021] FCA 305

Although the delay of about a month was not long, the explanation for it was unsatisfactory and weighed against an extension. The prejudice asserted by Ms Giddins arose from her receipt and expenditure of the benefit after the trustee implemented AFCA's determination, but the same prejudice would have existed even if the appeal had been commenced within time because implementation occurred before the appeal period expired. The proposed legal unreasonableness grounds were arguable, while the proposed ground alleging failure to take into account current financial circumstances had no reasonable prospect because AFCA's reasons dealt with those circumstances in detail. The public interest in...

Jurisdiction
Australia
Judgment Date
24 March 2021
Procedural Posture
Application for an Extension of Time to Commence an Appeal From a Decision of the Australian Financial Complaints Authority / Extension of Time Application
Outcome
Extension of time granted nunc pro tunc to 4 February 2021, confined to proposed grounds 2 and 3; extension refused in relation to proposed ground 1.
Legal Topics
['extension of Time to Appeal' 'appeal From AFCA Determination on a Question of Law' 'superannuation Death Benefits' 'operation and Implementation of AFCA Determinations' 'legal Unreasonableness' 'prejudice']
['practice and Procedure' 'administrative Law' 'corporations' 'superannuation'] ['extension of Time to Appeal' 'appeal From AFCA Determination on a Question of Law' 'superannuation Death Benefits' 'operation and Implementation of AFCA Determinations' 'legal Unreasonableness' 'prejudice']

Case Brief

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Procedural Posture

Application for an Extension of Time to Commence an Appeal From a Decision of the Australian Financial Complaints Authority / Extension of Time Application

Legal Issues

  1. 1 ["Whether time should be extended under s 1057(2) of the Corporations Act 2001 (Cth) to commence an appeal from AFCA's determination made on 10 December 2020." "Whether the applicants' explanation for delay in commencing the appeal was adequate." "Whether the third respondent would suffer prejudice because the trustee had implemented AFCA's decision and paid her 85% of the death benefit before the appeal was commenced." 'Whether the proposed grounds alleging legal unreasonableness were sufficiently arguable to justify an extension of time.' "Whether the proposed ground alleging failure to take into account the applicants' and Ms Giddins' current financial circumstances had reasonable prospects of success." 'Whether there was a public interest in the Court considering the proper construction and operation of the Corporations Act provisions concerning implemented AFCA determinations and remittal.']

Ratio Decidendi

Although the delay of about a month was not long, the explanation for it was unsatisfactory and weighed against an extension. The prejudice asserted by Ms Giddins arose from her receipt and expenditure of the benefit after the trustee implemented AFCA's determination, but the same prejudice would have existed even if the appeal had been commenced within time because implementation occurred before the appeal period expired. The proposed legal unreasonableness grounds were arguable, while the proposed ground alleging failure to take into account current financial circumstances had no reasonable prospect because AFCA's reasons dealt with those circumstances in detail. The public interest in...

Court Disposition

Extension of time granted nunc pro tunc to 4 February 2021, confined to proposed grounds 2 and 3; extension refused in relation to proposed ground 1.

Orders

  • ['Pursuant to s 1057(2) of the Corporations Act 2001 (Cth) the time to commence an appeal from the decision of the Australian Financial Complaints Authority made on 10 December 2020 be extended nunc pro tunc to 4 February 2021 on the conditions specific in paragraph 2.' 'The questions of law to be argued on the...