Cuesuper Pty Ltd [2009] NSWSC 981

Cuesuper Pty Ltd [2009] NSWSC 981

The proper administration of Cuesuper required the Plaintiff to be appropriately remunerated because the fund had become large and complex and required professionally competent directors able to devote sufficient time to its affairs. Although s 81 of the Trustee Act 1925 (NSW) could prima facie authorise remuneration as an expenditure, it was only a partial solution because clause 3.23 expressly prohibited remuneration. The trust deed amendment power, with Principal Employer approval and the Plaintiff's satisfaction that member benefits would not be reduced, provided a complete mechanism, and the Court's direction removed the difficulty arising from the trustee's conflict of interest and...

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Application by Trustee of Superannuation Fund for Directions and Authorisation Concerning Amendment of Trust Deed to Provide for Trustee Remuneration / Principal Judgment
Outcome
Directions given as sought.
Legal Topics
['trustee Remuneration' 'amendment of Trust Deed' 'conflict of Interest and Duty' 'section 81 Trustee Act Powers' 'inherent Equitable Jurisdiction']
['trusts' 'superannuation' 'equity'] ['trustee Remuneration' 'amendment of Trust Deed' 'conflict of Interest and Duty' 'section 81 Trustee Act Powers' 'inherent Equitable Jurisdiction']

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Procedural Posture

Application by Trustee of Superannuation Fund for Directions and Authorisation Concerning Amendment of Trust Deed to Provide for Trustee Remuneration / Principal Judgment

Legal Issues

  1. 1 ['Whether the trustee of Cuesuper was justified in amending the trust deed to provide for its remuneration despite an express clause prohibiting remuneration.' 'Whether remuneration could be authorised under s 81 of the Trustee Act 1925 (NSW).' "Whether the Court's inherent equitable jurisdiction supported authorising trustee remuneration where necessary for proper administration of the trust." 'Whether the application could proceed without joinder or notice to members of Cuesuper.']

Ratio Decidendi

The proper administration of Cuesuper required the Plaintiff to be appropriately remunerated because the fund had become large and complex and required professionally competent directors able to devote sufficient time to its affairs. Although s 81 of the Trustee Act 1925 (NSW) could prima facie authorise remuneration as an expenditure, it was only a partial solution because clause 3.23 expressly prohibited remuneration. The trust deed amendment power, with Principal Employer approval and the Plaintiff's satisfaction that member benefits would not be reduced, provided a complete mechanism, and the Court's direction removed the difficulty arising from the trustee's conflict of interest and...

Court Disposition

Directions given as sought.

Orders

  • ['The Court directs that the Plaintiff is justified in amending the Trust Deed of Cuesuper in the manner set out in Exhibit P2.' 'The Court orders that the Plaintiff have its costs of this application out of the trust fund on the trustee basis.']