Application by NGS Super Pty Ltd atf NGS Super [2021] NSWSC 1694

Supreme Court New South Wales

Medium Neutral Citation: Application by NGS Super Pty Ltd atf NGS Super [2021] NSWSC 1694 Hearing dates: 3 and 10 December 2021. Last submissions received on 14 December 2021. Date of orders: 22 December 2021 Decision date: 22 December 2021 Jurisdiction: Equity Before: Henry J Decision: The Plaintiff is justified in amending the Trust Deed as proposed. See [109]. Catchwords: EQUITY – Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – where proposed amendments to trust deed of industry superannuation fund give trustee power to be paid and retain remuneration – where amendments sought to enable trustee to meet potential liabilities against it and its directors – where trustee is not-for-profit company 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: Corporations Act 2001 (Cth), s 199A 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) Superannuation Industry (Supervision) Act 1993 (Cth), ss 29V, 52(2), 52A, 56(2), 57(2) 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 Application by Motor Trades Association of Australia Superannuation Fund Pty Ltd atf Spirit Super [2021] NSWSC 1672 Application by United Super Pty Ltd atf Construction and Building Unions Superannuation Fund [2021] NSWSC 1679 Australian Prudential Regulation Authority v Kelaher [2019] FCA 1521; 138 ACSR 459 Baymill Investments Pty Ltd v Drewlock Pty Ltd [2019] VSC 827 HEST Australia Ltd [2021] VSC 809 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 Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Longboat Holdings Groupno3 v Zacole Pty Ltd [2021] VSC 280 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 Re Application of NSW Trustee & Guardian [2014] NSWSC 423 Re Application of Perpetual Trustee Co Ltd [2003] NSWSC 1185 Re Care Super Pty Ltd [2021] VSC 805 Re Care Super Pty Ltd (No 2) [2021] VSC 854 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: NGS Super Pty Ltd as trustee of NGS Super (ABN 72 549 180 515) (Plaintiff) Australian Prudential Regulation Authority (amicus curiae) Representation: Counsel: D Hogan-Doran SC with D Fuller (Plaintiff) S Cooper QC with K A Morris (APRA as amicus curiae)