Application by United Super Pty Ltd atf Construction and Building Unions Superannuation Fund [2021] NSWSC 1679

Supreme Court New South Wales

Medium Neutral Citation: Application by United Super Pty Ltd atf Construction and Building Unions Superannuation Fund [2021] NSWSC 1679 Hearing dates: 10 November 2021. Last submissions received on 16 December 2021. Date of orders: 20 December 2021 Decision date: 20 December 2021 Jurisdiction: Equity Before: Henry J Decision: The Plaintiff is justified in amending the Trust Deed in the manner set out in the Draft Deed of Amendment. Catchwords: EQUITY – Trusts and trustees – judicial advice under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and cross-vesting legislation – where proposed amendments to trust deed of superannuation fund give trustee power to levy fee on members and accumulate trustee capital – where amendments sought to enable trustee to meet potential liabilities against it and its directors – where superannuation fund operates under profit-to-member structure with nominal capital – where trust deed contains existing remuneration power – whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 11, 12 Financial Sector Reform (Hayne Royal Commission Response) Act 2020 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 9 Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), ss 3(1), 4(3) Superannuation Industry (Supervision) Act 1993 (Cth), ss 52(2), 56(2), 57(2) Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 54.02, 54.03(c) Trustee Act 1925 (NSW), s 63 Cases Cited: Application by LGSS Pty Ltd atf Local Government Super [2021] NSWSC 1613 Application by Maritime Super Pty Ltd atf Maritime Super [2021] NSWSC 1614 Australian Prudential Regulation Authority v Kelaher [2019] FCA 1521; 138 ACSR 459 Ballard v Attorney-General (Vic) (2010) 30 VR 413; [2010] VSC 525 Baymill Investments Pty Ltd v Drewlock Pty Ltd [2019] VSC 827 BTA Institutional Services Australia Ltd v BNY Trust (Australia) Registry Ltd [2009] NSWSC 1294 Chamberlin v Spry [2008] VSC 562 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; [2010] NSWSC 646 Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Limited (2006) 15 VR 87; [2006] VSC 112 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Marley v Mutual Security Merchant Bank & Trust Co Ltd [1991] 3 All ER 198 Application by Motor Trades Association of Australia Superannuation Fund Pty Ltd atf Spirit Super [2021] NSWSC 1672 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 Atkinson (deceased) [1971] VR 612 Re Care Super Pty Ltd [2021] VSC 805 Re Cuesuper Pty Ltd [2009] NSWSC 981 Re Dion Investments Pty Ltd [2013] NSWSC 1941 Re HEST Australia Ltd [2021] VSC 809 Re Perpetual Investment Management Ltd [2014] NSWSC 784 Re QSuper Board [2021] QSC 276 Re Retail Employees Superannuation Pty Ltd [2013] NSWSC 1681 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Telstra Corp Ltd v NBN Co Ltd [2014] NSWSC 940 Welker v Rinehart [2011] NSWSC 1094 Texts Cited: Nil Category: Principal judgment Parties: United Super Pty Ltd (ABN 46 006 261 623) as trustee for Construction and Building Unions Superannuation Fund (ABN 75 493 363 262) (Plaintiff) Australian Prudential Regulation Authority (amicus curiae) Representation: Counsel: H Insall SC with T Rogan (Plaintiff) S Cooper QC with D Allen (APRA as amicus curiae)