Employers First v Tolhurst Capital Limited [2005] FCA 616

FEDERAL COURT OF AUSTRALIA

Employers First v Tolhurst Capital Limited [2005] FCA 616 SUPERANNUATION – review of decisions – appeal from Superannuation Complaints Tribunal – trustee did not pay to member the benefit as stated in member statement – construction of terms of governing deed – whether Tribunal decision contrary to terms of deed SUPERANNUATION – industry regulation – reg 13.16 of Superannuation Industry (Supervisions) Regulations – construction of phrase 'accrued benefits' – whether accrued benefits can exceed the benefits to which a member is entitled under the governing deed SUPERANNUATION – review of decisions – appeal from Superannuation Complaints Tribunal – whether Tribunal bound by requirements of procedural fairness – whether tribunal breached rules of procedural fairness in deciding review on question about which no party made submissions SUPERANNUATION – industry regulation – complaints – whether complaint related to management of fund as a whole Superannuation Industry (Supervision) Act 1993 (Cth) Superannuation (Resolution of Complaints) Act 1993 (Cth) s 11, s 14, s 33, s 37, s 46 Superannuation Industry (Supervision) Regulations 1994 reg 9.27, reg 13.16 Asgard Capital Management Ltd v Maher (2003) 131 FCR 196 considered Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 cited Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 referred to Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 followed Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333 considered Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 considered Kioa v West (1985) 159 CLR 550 cited Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 cited Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 cited TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited EMPLOYERS FIRST v TOLHURST CAPITAL LIMITED AND GEOFFREY EDGAR BARRATT NSD 957 of 2003 BRANSON J 16 MAY 2005 SYDNEY