Re Retail Employees Superannuation Pty Ltd [2013] NSWSC 1681

Re Retail Employees Superannuation Pty Ltd [2013] NSWSC 1681

Because the trust deed contained a power of amendment, the proposed amendments did not fall within the deed's prohibition on amendments and the application raised questions about management or administration of trust property within s 63 of the Trustee Act 1925. Given the Trust's size, the substantial and burdensome obligations of the trustee's directors, the evidence that remuneration for directors of substantial superannuation trustees is generally accepted, and the proposed fair and reasonable Trustee Fee mechanism, the trustee would be justified in amending the trust deed as proposed.

Jurisdiction
Australia
Judgment Date
14 November 2013
Procedural Posture
Application for Judicial Advice Under S 63 of the Trustee Act 1925, Alternatively for an Order Under S 81 of the Trustee Act 1925 / Principal Judgment
Outcome
Advice given and costs ordered from the trust fund.
Legal Topics
['applications to the Court for Advice' 'trustee Remuneration' 'director Remuneration' 'amendment of Trust Deed' 'regulated Superannuation Fund']
['equity' 'trusts and Trustees' 'superannuation'] ['applications to the Court for Advice' 'trustee Remuneration' 'director Remuneration' 'amendment of Trust Deed' 'regulated Superannuation Fund']

Case Brief

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Procedural Posture

Application for Judicial Advice Under S 63 of the Trustee Act 1925, Alternatively for an Order Under S 81 of the Trustee Act 1925 / Principal Judgment

Legal Issues

  1. 1 ['Whether the trustee would be justified in amending the trust deed of the Retail Employees Superannuation Trust to facilitate payment of remuneration to the trustee and its directors.' 'Whether the matter fell within s 63 of the Trustee Act 1925 as a question respecting the management or administration of trust property.' 'Whether s 81 of the Trustee Act 1925 was engaged in circumstances where the trust deed contained a power of amendment.']

Ratio Decidendi

Because the trust deed contained a power of amendment, the proposed amendments did not fall within the deed's prohibition on amendments and the application raised questions about management or administration of trust property within s 63 of the Trustee Act 1925. Given the Trust's size, the substantial and burdensome obligations of the trustee's directors, the evidence that remuneration for directors of substantial superannuation trustees is generally accepted, and the proposed fair and reasonable Trustee Fee mechanism, the trustee would be justified in amending the trust deed as proposed.

Court Disposition

Advice given and costs ordered from the trust fund.

Orders

  • ['Pursuant to s 63 of the Trustee Act 1925 the Court advises that the plaintiff would be justified in amending the trust deed of the Retail Employees Superannuation Trust in the manner set out in the Draft Deed of Amendment which is contained behind tab 44 of Confidential Exhibit A (being Exhibit RJ-1 to the...