The Trustee for Host Plus Superannuation Fund trading as Host-Plus Pty Limited v Maritime Super Pty Limited trading as Maritime Super Pty Limited [2023] NSWSC 725

Supreme Court New South Wales

Medium Neutral Citation: The Trustee for Host Plus Superannuation Fund trading as Host-Plus Pty Limited v Maritime Super Pty Limited trading as Maritime Super Pty Limited [2023] NSWSC 725 Hearing dates: 20 June 2023 Date of orders: 28 June 2023 Decision date: 28 June 2023 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Section 249E of the Crimes Act 1900 (NSW) not engaged in relation to a successor fund transfer Catchwords: EQUITY – trusts and trustees – superannuation funds – successor fund transfer – transfer of assets from one superannuation fund to another – members of transferor fund to become members of transferee fund – whether s 249E of the Crimes Act 1900 (NSW) engaged – whether Court's consent required under s 249E of the Crimes Act 1900 (NSW) Legislation Cited: Corporations Act 2001 (Cth) Crimes Act 1900 (NSW) Crimes Act 1958 (Vic) Criminal Code Act 1899 (Qld) Secret Commissions Prohibition Act 1919 (NSW) Superannuation Industry (Supervision) Act 1993 (Cth) Superannuation Industry (Supervision) Regulations 1994 (Cth) Trustee Act 1925 (NSW) Cases Cited: Application of MLC Investments Limited [2022] NSWSC 1541 BT Funds Management Limited (ACN 002 916 458) as trustee for the Retirement Wrap Superannuation Fund [2022] NSWSC 401 H.E.S.T Australia Ltd v Attorney-General (Qld) & Anor; Mercy Super Pty Ltd v Attorney-General (Qld) [2022] QSC 221 The Attorney-General for the State of New South Wales v The Brewery Employés Union of New South Wales (1908) 6 CLR 469; [1908] HCA 94 Texts Cited: D C Pearce, Statutory Interpretation in Australia, (9th ed, 2019, LexisNexis) Explanatory Note, Crimes (Secret Commissions) Amendment Bill 1987 (NSW) J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 May 1987 P Finn, Fiduciary Obligations (2016, The Federation Press) P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: The Trustee for Host Plus Superannuation Fund trading as Host-Plus Pty Limited (Plaintiff) Maritime Super Pty Limited trading as Maritime Super Pty Limited (First Defendant) Maritime Financial Services Pty Limited trading as Maritime Financial Services Pty Limited (Second Defendant) Australian Prudential Regulation Authority (Intervener) Representation: Counsel: O Bigos KC with E Smith (Plaintiff) I Ahmed with M Aguinaldo (Defendants) S Mackenzie (Intervener)