Application by LGSS Pty Ltd atf Local Government Super [2021] NSWSC 1613

Supreme Court New South Wales

Medium Neutral Citation: Application by LGSS Pty Ltd atf Local Government Super [2021] NSWSC 1613 Hearing dates: 1 December 2021 Decision date: 14 December 2021 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. The opinion, advice and direction of the Court under s 63 of the Trustee Act 1925 (NSW) that the Plaintiff would be justified in amending the trust deed of LGSS (the Fund) in the manner set out in the Draft Deed of Amendment (which is exhibited to the affidavit affirmed by Ms Donna Maree Heffernan on 12 November 2021 (Draft Deed of Amendment). 2. Order that the costs arising out of and incidental to this Summons be paid out of the assets of the Fund on the trustee basis pursuant to s 93 of the Trustee Act 1925 (NSW) 3. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Act), or alternatively in the Court's inherent jurisdiction, and on the grounds referred to in s 8(1)(a), a suppression order is made prohibiting the disclosure by publication or otherwise of the Plaintiff's Confidential Information (as defined at [189] of the reasons). 4. Pursuant to s 12 of the Act, the suppression order in order 3 above operates until the termination of the Trust Deed constituting the Fund or further order of the Court. 5. Pursuant to s 11 of the Act, the suppression order in order 3 above applies throughout the Commonwealth. 6. Order that the plaintiff has leave to file copies of the plaintiff's filed affidavits and written submissions and the Australian Prudential Regulation Authority's written submissions with the Plaintiff's Confidential Information redacted. 7. Orders that applicants for non-party access, whose application for access is otherwise approved, may be given access to the redacted materials filed in accordance with order 6. Catchwords: EQUITY — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 EQUITY — Trusts and trustees — Superannuation funds Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth), ss 181, 199A, 199B Courts Suppression and Non-publication Orders Act 2010 (NSW), 7, 8, 9, 11, 12 Financial Sector Reform (Hayne Royal Commission Response) Act 2020 (Cth) Financial Sector Reform (Hayne Royal Commission Response) Bill 2020 Jurisdiction of Courts (Cross-vesting) Act 1987 (ACT), s 4 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 9 Superannuation Administration Act 1996 (NSW), s 127 Superannuation Industry (Supervision) Act 1993 (Cth), ss 19, 52, 56, 57 Treasury Laws Amendment (Your Future, Your Super) Act 2021 (Cth), Trustee Act 1925 (NSW), ss 63, 81 Trustees Act 1962 (WA) Cases Cited: Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 Application by Maritime Super Pty Ltd atf Maritime Super [2021] NSWSC 1614 APRA v Kelaher (2019) 138 ACSR 459; [2019] FCA 1521 Arakella Pty Ltd v Paton (2004) 60 NSWLR 334; [2004] NSWSC 13 Baymill Investments Pty Ltd v Drewlock Pty Ltd [2019] VSC 827 BTA Institutional Services Australia Ltd & BNY Trust (Australia) Registry Ltd (2009) 3 ASTLR 207; [2009] NSWSC 1294 Chamberlain v Spry [2008] VSC 562 Cowan v Scargill [1985] Ch 270 Crnjanin v loos [2010] NSWSC 750 D1 v P1 [2012] NSWCA 314 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; (2012) NSWCCA 125 Hancock v Rinehart (2015) 106 ACSR 207; [2015] NSWSC 646 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 In re Duke of Norfolk's Settlement Trusts [1982] Ch 61 Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd (2006) 15 VR 87; [2006] VSC 112 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Kimberley Mineral Holdings Ltd (In Liq) v McEwan [1980] 1 NSWLR 210 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 Marshall v Holloway (1820) 2 Swan 432 McKinnon v Samuels [2000] VSC 393 Nissen v Grunden (1912) 14 CLR 297; [1912] HCA 35; Re Application of NSW Trustee & Guardian [2014] NSWSC 423 Re Application of Perpetual Trustee Co Ltd [2003] NSWSC 1185 Re Application of Rinehart (2020) 104 NSWLR 274; [2020] NSWSC 1624 Re Care Super Pty Ltd (in its capacity as trustee of Care Super) [2021] VSC 805 Re Courage Pension Schemes [1986] 1 WLR 495 Re Creditors' Trust of Jackgreen International Pty Ltd [2011] NSWSC 748 Re Cuesuper Pty Ltd [2009] NSWSC 981 Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367 Re Dion Investments Pty Ltd [2013] NSWSC 1941 Re Dion Investments Pty Ltd [2020] NSWSC 1661 Re Freeman's Settlement (1887) 37 Ch D 148 Re French Protestant Hospital [1951] Ch 567 Re HEST Australia Ltd [2021] VSC 809 Re Perpetual Investment Management Ltd [2011] NSWSC 133 Re Perpetual Investment Management Ltd [2014] NSWSC 784 Re QSuper Board [2021] QSC 276 Re Queensland Coal and Oil Shale Mining Industry (Superannuation) Ltd [1999] 2 Qd R 524 Re Reevie and Montreal Trust Co of Canada (1984) 46 OR (2d) 667 Re Retail Employees Superannuation Trust Pty Ltd [2013] NSWSC 1681 Re UEB Industries Ltd Pension Plan [1992] 1 NZLR 294 Riddle v Riddle (1952) 85 CLR 202; [1952] HCA 12 Robinson v Pett (1734) 3 P Wms 249; (1734) 24 ER 1049 Telstra Corp Ltd v NBN Co Ltd [2014] NSWSC 940 Trustee Solutions v Dubery [2006] EWHC 1426 (Ch) Walker Morris Trustees Ltd v Masterton [2009] EWHC 1955 (Ch) Texts Cited: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) Report of the Australian Law Reform Commission and the Companies and Securities Advisory Committee, Collective Investments: Superannuation (1992) Category: Principal judgment Parties: LGSS Pty Ltd atf Local Government Super (Plaintiff) Representation: Counsel: HK Insall SC with TM Rogan