The Trustee for Host Plus Superannuation Fund trading as Host-Plus Pty Limited v Maritime Super Pty Limited trading as Maritime Super Pty Limited [2023] NSWSC 725

The Trustee for Host Plus Superannuation Fund trading as Host-Plus Pty Limited v Maritime Super Pty Limited trading as Maritime Super Pty Limited [2023] NSWSC 725

The Proposed Transfer did not engage s 249E of the Crimes Act 1900 (NSW) because it did not involve the appointment of Host-Plus, or any other person, as trustee of the Maritime Fund property. Host-Plus would remain trustee of the Hostplus Fund, the Maritime assets would be transferred to that fund and become impressed with its trusts, and Maritime would remain trustee of the Maritime Fund for winding up. The statutory language and context directed attention to appointment as trustee of the same trust property, not a successor fund transfer between separate trusts.

Jurisdiction
Australia
Judgment Date
28 June 2023
Procedural Posture
Equity Commercial List Application for Consent Under S 249 E of the Crimes Act 1900 (nsw) in Relation to a Proposed Successor Fund Transfer / Principal Judgment
Outcome
Section 249E(2) of the Crimes Act 1900 (NSW) has no application to the successor fund transfer and was not engaged; the Court declined to give the consent sought by Host-Plus.
Legal Topics
['successor Fund Transfer' 'superannuation Fund Merger' 'transfer of Trust Assets' 'appointment of Trustee' 's 249 E of the Crimes Act 1900 (nsw)' 'secret Commissions']
['equity' 'trusts and Trustees' 'superannuation' 'criminal Law'] ['successor Fund Transfer' 'superannuation Fund Merger' 'transfer of Trust Assets' 'appointment of Trustee' 's 249 E of the Crimes Act 1900 (nsw)' 'secret Commissions']

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Procedural Posture

Equity Commercial List Application for Consent Under S 249 E of the Crimes Act 1900 (nsw) in Relation to a Proposed Successor Fund Transfer / Principal Judgment

Legal Issues

  1. 1 ['Whether s 249E of the Crimes Act 1900 (NSW) is engaged by a superannuation fund merger effected by a successor fund transfer.' 'Whether the Proposed Transfer involves the appointment of Host-Plus, or any other person, to be a person entrusted with property for the purposes of s 249E.' "Whether the Court's consent under s 249E of the Crimes Act 1900 (NSW) is required."]

Ratio Decidendi

The Proposed Transfer did not engage s 249E of the Crimes Act 1900 (NSW) because it did not involve the appointment of Host-Plus, or any other person, as trustee of the Maritime Fund property. Host-Plus would remain trustee of the Hostplus Fund, the Maritime assets would be transferred to that fund and become impressed with its trusts, and Maritime would remain trustee of the Maritime Fund for winding up. The statutory language and context directed attention to appointment as trustee of the same trust property, not a successor fund transfer between separate trusts.

Court Disposition

Section 249E(2) of the Crimes Act 1900 (NSW) has no application to the successor fund transfer and was not engaged; the Court declined to give the consent sought by Host-Plus.

Orders

  • ['The parties should bring in short minutes to give effect to the reasons.']