Application by Maritime Super Pty Ltd atf Maritime Super [2021] NSWSC 1614

Application by Maritime Super Pty Ltd atf Maritime Super [2021] NSWSC 1614

The Trustee is justified in amending the trust deed to enable payment of a Trustee fee as proposed, within capped and reviewed limits, to provide financial resilience and mitigate insolvency risk for members, in response to legislative changes. The amendment does not breach express deed restrictions or statutory obligations, and confidentiality orders are warranted for sensitive material.

Parties
Plaintiff: Maritime Super Pty Ltd atf Maritime Super; Amicus Curiae: Australian Prudential Regulation Authority (APRA)
Jurisdiction
Australia
Judgment Date
14 December 2021
Procedural Posture
Application for Judicial Advice Under S 63 Trustee Act 1925 (nsw) / Final Judgment
Outcome
Application granted
Legal Topics
Judicial Advice, Trustee Remuneration, Amendment of Trust Deeds, Conflicts of Interest, Suppression Orders, Best Financial Interests Duty
Equity Trusts and Trustees Superannuation Corporate Law Judicial Advice Trustee Remuneration Amendment of Trust Deeds Conflicts of Interest +2 more

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Parties

Maritime Super Pty Ltd atf Maritime Super

Plaintiff

Australian Prudential Regulation Authority (APRA)

Amicus Curiae

Procedural Posture

Application for Judicial Advice Under S 63 Trustee Act 1925 (nsw) / Final Judgment

Legal Issues

  1. 1 Whether the Trustee is justified in amending the trust deed to enable payment of a Trustee fee
  2. 2 Whether amendment engages express restrictions of the deed
  3. 3 Whether amendment is consistent with principles of equity and trust law

Ratio Decidendi

The Trustee is justified in amending the trust deed to enable payment of a Trustee fee as proposed, within capped and reviewed limits, to provide financial resilience and mitigate insolvency risk for members, in response to legislative changes. The amendment does not breach express deed restrictions or statutory obligations, and confidentiality orders are warranted for sensitive material.

Court Disposition

Application granted

Orders

  • Judicial advice given: Trustee justified in amending trust deed in terms of Draft Deed of Amendment exhibited to affidavit affirmed 12 November 2021.
  • Plaintiff's costs to be paid out of Fund assets on trustee basis pursuant to s 93 Trustee Act 1925 (NSW).