Asgard Capital Management Limited v Maher [2002] FCA 1329

FEDERAL COURT OF AUSTRALIA

Asgard Capital Management Limited v Maher [2002] FCA 1329

SUPERANNUATION – fund member retiree instructed financial adviser to apply existing superannuation fund entitlement for three purposes – two purposes required cash outlays out of proceeds of fund to be made by fund manager – third and major purpose required only internal fund transfer to new account to be conducted by existing fund manager and therefore no withdrawal of cash – fund member signed fund manager's authority form in blank and handed same to fund member's financial adviser – financial adviser thereafter filled in authority wholly in favour of his business bank account without knowledge of fund member – financial adviser wholly misappropriated funds the subject of the third and major purpose – whether fund manager liable to make good to fund member misappropriated funds by reason of fund manager permitting funds to be transferred from fund member's superannuation account direct to third party and not to fund member – fund manager denied liability – fund member's appeal to Superannuation Complaints Tribunal upheld – fund manager's appeal to Court disallowed – consideration of superannuation trust deed and applicable legislation and subordinate legislation.

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 37, 46(1) Superannuation Industry (Supervision) Act 1993 (Cth) ss 3(1), 58, 62 Superannuation Industry (Supervision)Regulations 1994 regs 6.22 and 6.22B

Melsom v Vanpress Pty Ltd (1990) 3 ACSR 109 distinguished H Meyer & Co Ltd v Jules Decroix, Verley et Cie [1891] AC 520 distinguished Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 cited National Mutual Life Association of Australia Ltd v Jevtovic [1997] 359 FCA (8 May 1997, Sundberg J) cited ASGARD CAPITAL MANAGEMENT LIMITED v BARRY RICHARD MAHER N 853 OF 2002 CONTI J 29 OCTOBER 2002 SYDNEY