Dawson v Dawson [2019] NSWSC 826

Dawson v Dawson [2019] NSWSC 826

The plaintiff was appointed trustee of the Fund in his personal capacity by the 17 March 2014 deed and that appointment was not limited to the duration of the enduring power of attorney or terminated by Peter Dawson's death. The plaintiff had not ceased to hold office under clause 6.1(c) of the Fund Deed: he was not disqualified, was not validly removed by member notice, had not retired, and had not died or become of unsound mind. Because the plaintiff remained one of the trustees, the first defendant could not unilaterally appoint or ratify the appointment of the second defendant as substitute trustee under the Fund Deed. Section 17A(3)(a) of the SIS Act was permissive and did not...

Jurisdiction
Australia
Judgment Date
03 July 2019
Procedural Posture
Equity Proceeding by Summons Concerning Trusteeship of the Dawson Superannuation Fund / Principal Judgment After Hearing; Declarations, Orders and Addendum Orders Made on 3 July 2019
Outcome
Declarations made that the plaintiff and first defendant are and remain trustees of the Fund and that the second defendant is not a trustee; delivery up and costs orders made; permanent injunction refused, with interlocutory injunction temporarily varied and extended by consent until the relisted date.
Legal Topics
['self Managed Superannuation Fund' 'identity of Trustee' 'enduring Power of Attorney' 'legal Personal Representative' 'appointment and Removal of Trustees' 'fund Deed Construction' 'quia Timet Injunction' 'costs']
['equity' 'trusts and Trustees' 'superannuation' 'civil Procedure'] ['self Managed Superannuation Fund' 'identity of Trustee' 'enduring Power of Attorney' 'legal Personal Representative' 'appointment and Removal of Trustees' 'fund Deed Construction' 'quia Timet Injunction' 'costs']

Case Brief

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Procedural Posture

Equity Proceeding by Summons Concerning Trusteeship of the Dawson Superannuation Fund / Principal Judgment After Hearing; Declarations, Orders and Addendum Orders Made on 3 July 2019

Legal Issues

  1. 1 ['Whether the plaintiff was appointed a trustee of the Fund in his personal capacity or in his capacity as power of attorney for Peter Dawson.' "Whether the plaintiff's appointment as trustee of the Fund ceased following the death of Peter Dawson or at some later date." "Whether the second defendant was validly appointed as trustee of the Fund as a replacement of the plaintiff, either with effect from Peter Dawson's death or some later date." 'Whether the Fund was a one-member or two-member fund for the purposes of the SIS Act.' "Whether a permanent injunction should restrain the first defendant from taking action in relation to the plaintiff's status as trustee."]

Ratio Decidendi

The plaintiff was appointed trustee of the Fund in his personal capacity by the 17 March 2014 deed and that appointment was not limited to the duration of the enduring power of attorney or terminated by Peter Dawson's death. The plaintiff had not ceased to hold office under clause 6.1(c) of the Fund Deed: he was not disqualified, was not validly removed by member notice, had not retired, and had not died or become of unsound mind. Because the plaintiff remained one of the trustees, the first defendant could not unilaterally appoint or ratify the appointment of the second defendant as substitute trustee under the Fund Deed. Section 17A(3)(a) of the SIS Act was permissive and did not...

Court Disposition

Declarations made that the plaintiff and first defendant are and remain trustees of the Fund and that the second defendant is not a trustee; delivery up and costs orders made; permanent injunction refused, with interlocutory injunction temporarily varied and extended by consent until the relisted date.

Orders

  • ['Declare that the plaintiff and the first defendant were, by Deed dated 17 March 2014, appointed the "New Trustee(s)" of the Dawson Superannuation Fund (the Fund).' 'Declare that the plaintiff and first defendant continued as the Trustees of the Fund after the death of Peter Robert Dawson on 24 November 2015 and...