Re AUSCOAL Superannuation Pty Ltd atf the Mine Superannuation Fund; Application for Judicial Advice [2024] NSWSC 32

Supreme Court New South Wales

Medium Neutral Citation: Re AUSCOAL Superannuation Pty Ltd atf the Mine Superannuation Fund; Application for Judicial Advice [2024] NSWSC 32 Hearing dates: 6, 9, 10, 13, 16 and 17 November 2023 Date of orders: 1 February 2024 Decision date: 01 February 2024 Jurisdiction: Equity Before: Robb J Decision: See [308] Catchwords: EQUITY – trusts and trustees – judicial advice under s 63 of the Trustee Act 1925 (NSW) – where superannuation fund comprises members with accumulation interests and members with defined benefit interests – where trust deed of the fund contains a "single trust" clause – where the "single trust" clause provides that no part of the trust deed shall be taken as establishing a separate trust in respect of any category of members or any part of the fund – whether the trustee would be justified in administering and managing the fund on the basis that, notwithstanding the presence of the "single trust" clause, in all the circumstances the entitlements of members with defined benefit interests must be satisfied out of the net value of the assets attributed by the fund to the category or division within the category to which members with defined benefit interests belong – consideration of the construction and effect of the "single trust" clause in the context of the trust deed as a whole – whether the trustee of the fund may make certain amendments to the trust deed to empower the board of directors of the fund to retain the services of and appoint expert advisors and consultants, and to act on their advice – whether the trustee of the fund may amend the trust deed to confirm that the existing indemnity under the deed extends to circumstances where the trustee acts upon the opinion or advice of expert advisors and consultants Legislation Cited: Coal and Oil Shale Mine Workers (Superannuation) Act 1941 (NSW), ss 15C, 18, Pt 4A Coal Industry Superannuation Regulations 2014 (WA), regs 6, 11, 12, 24, 25, 26(1), 27, 28, 29, 30, 31, 32, 33, 35, 48 Court Suppression and Non-publication Orders Act 2010 (NSW), 8(1) Superannuation Guarantee (Administration) Act 1992 (Cth) Superannuation Industry (Supervision) Act 1993 (Cth), ss 10, 16, 18, 29T, Pt 3, s 31, 52, Pt 8, 69A, Pt 29, ss 326, 327, 332, 334 Superannuation Industry (Supervision) Regulations 1994 (Cth), Pt 1, regs 1.03, 1.03AAA, Pt 9, Divs 9.2, 9.2A, reg 9.04B, Div 9.2B, reg 9.04G, Div 9.3, regs 9.06, 9.07, 9.08, 9.09, 9.15, 9.17, Div 9.4, regs, 9.23, 9.24, 9.25, Divs 9.6, 9.7, regs 9.43, 9.44, 9.45 Trustee Act 1925 (NSW), s 63 Uniform Civil Procedure Rules 2005 (NSW), r 42.25, Pt 55, Div 1, r 55.2 Cases Cited: Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd [2002] VSC 576; (2002) 174 FLR 1 Application by NGS Super Pty Ltd atf NGS Super [2021] NSWSC 1694 Application by SCS Super Pty Ltd atf Australian Catholic Superannuation and Retirement Fund [2022] NSWSC 686 Energy Industries Superannuation Scheme Pty Limited as trustee of the Energy Industries Superannuation Scheme Pool A and Pool B (trading as EISS Super) [2022] NSWSC 1202 Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55 Greylag Goose Leasing 1410 Designated Activity Co v PT Garuda Indonesia Ltd [2023] NSWCA 134; (2023) 410 ALR 371 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 Texts Cited: Australian Prudential Regulation Authority, Prudential Practice Guide SPG 520 – Fit and Proper, July 2013 JD Heydon, Heydon on Contract (2019, Thomson Reuters) JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) Category: Principal judgment Parties: AUSCOAL Superannuation Pty Ltd atf the Mine Superannuation Fund (Plaintiff) Representation: Counsel: D Hogan-Doran SC / A Ilic (Plaintiff)