Application by SCS Super Pty Limited atf Australian Catholic Superannuation and Retirement Fund [2022] NSWSC 686

Supreme Court New South Wales

Medium Neutral Citation: Application by SCS Super Pty Limited atf Australian Catholic Superannuation and Retirement Fund [2022] NSWSC 686 Hearing dates: 4 May 2022 Date of orders: 27 May 2022 Decision date: 27 May 2022 Jurisdiction: Equity Before: Hallen J Decision: See [157] Catchwords: EQUITY –Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – Where proposed amendment to Trust Deed to give trustee power to insert trustee remuneration clause – Where application responds to recent changes to legal and regulatory environment and is sought to enable trustee to meet potential liabilities against it and its directors – Where trustee is not-for-profit company with nominal capital – 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. SUPERANNUATION – Private Sector Funds – Amendment of Trust Deed Legislation Cited: Corporations Act 2001 (Cth) ch 7 Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 8(1), 10, 11-12 Financial Accountability Regime Bill 2021 (Cth) Financial Sector Reform (Hayne Royal Commission Response) Act 2020 (NSW) Superannuation Industry (Supervision) Act 1993 (Cth) ss 10, 29D, 52(2)(c), 52(8)(b), 52A(2)(c), 56(2), 57(2), 67, 89, 93(3)(a), 103, 105, 120(2), 126K, 133, 134 Trustee Act 1925 (NSW) ss 59(4), 63, 81, 93 Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 55.2, 42.25 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 NGS Super Pty Ltd atf NGS Super [2021] NSWSC 1694 Application by United Super Pty Ltd atf Construction and Building Unions Superannuation Fund [2021] NSWSC 1679 AustralianSuper Pty Ltd v McMillan [2021] SASC 147 Breen v Williams (1994) 35 NSWLR 522 Bropho v Tickner (1993) 40 FCR 165 Corporate Affairs Commission v Bradley [1974] NSWLR 391 Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 2094 Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 Kabushiki Kaisha Sony Computer Entertainment v Stevens (2001) 116 FCR 490; [2001] FCA 1379 Levy v The State of Victoria (1997) 189 CLR 579; [1997] HCA 31 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 Macedonian Orthodox Diocese of Australia and New Zealand (2006) 66 NSWLR 112; [2006] NSWCA 160 Macedonian Orthodox Community Church St Petka Incorporated 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 and Guardian [2014] NSWSC 423 Re Care Super Pty Ltd [2021] VSC 805 Re Care Super Pty Ltd (No 2) [2021] VSC 854 Re Equititrust Ltd (In Liq) (Receiver Appointed) (Receivers & Managers Appointed) [2016] NSWSC 1936 Re Hest Australia Ltd [2021] VSC 809 Re Medical Assessment Panel; ex parte Symons [2003] WASC 154 Re QSuper Board [2021] QSC 276 Roadshow Films Pty Ltd v iiNet Limited (2011) 248 CLR 37; [2011] HCA 54 Stein v Sybmore Holdings [2006] NSWSC 1004 Telstra Corporation Ltd v NBN Co Ltd [2014] NSWSC 940 Tribal Health Pty Ltd v Flush Fitness Pty Ltd [2016] QSC 103 Category: Principal judgment Parties: SCS Super Pty Limited as trustee of the Australian Catholic Superannuation and Retirement Fund (ABN 74 064 712 607) (Plaintiff)