OAL Superannuation Fund Pty. Ltd. v Olivetti Australia Pty. Ltd. [1999] NSWSC 151

New South Wales Supreme Court CITATION : OAL Superannuation Fund Pty. Ltd. v Olivetti Australia Pty. Ltd. [1999] NSWSC 151 CURRENT JURISDICTION : FILE NUMBER(S) : 3139/98 HEARING DATE(S) : 11/02/99 JUDGMENT DATE : 4 March 1999

OAL Superannuation Fund Pty. Ltd. (Plaintiff) PARTIES : Olivetti Australia Pty. Ltd. (First Defendant) John Ananian (Second Defendant) JUDGMENT OF : Windeyer J at 1

Mr A.G. Bell (Plaintiff) COUNSEL : Mr. J.D. Heydon Q.C. with him Mr. N. Perram (First Defendant) Mr. R.W. White S.C. with him Ms R.A. Pepper (Second Defendant) Allen Allen & Hemsley (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (First Defendant) Cutler Hughes & Harris (Second Defendant) CATCHWORDS : TRUSTS - Superannuation Fund - Whether resolution of trustees conferred accrued rights in members ACTS CITED : Superannuation Industry (Supervision) Regulations 1994 (Cth) CASES CITED : Industrial Equity Limited v Blackburn (1977) 137 CLR 567 Turner v S.R. Nominees Pty. Ltd. (1996) 31 ATR 578 DECISION :

General Outline

1 The question for decision is whether OAL Superannuation Fund Pty. Limited (OAL), the trustee of the OAL Superannuation Fund is bound as such trustee to make a distribution of surplus to fund members, pursuant to a resolution of its directors of 27 January 1998. OAL seeks a declaration that it is not so bound. The first defendant, Olivetti Australia Pty. Limited (Olivetti), the principal employer referred to in the deed, seeks a declaration that the trustee is not so bound, but that if it is then it is also bound to make a distribution of surplus to it. Mr. Langley, the second defendant, who is joined as a party to represent the fund members as at 18 November 1997, seeks a declaration that the resolution conferred upon the represented parties an entitlement to a distribution from surplus and seeks an order that this be effected. By late amendment which I allowed, subject to the issue arising being determined at a later time, Olivetti seeks a declaration that a deed dated 5 December 1997 amending the trust deed is invalid. Facts 2 The fund was established by trust deed and rules dated 11 February 1977. That deed and rules were, in accordance with their provisions, completely replaced by an amending deed, with new rules dated 13 March 1996, which rules have also been amended. The only part of the original deed which it is necessary to set out, not for the determination of the present questions, but for the determination of the final question which is to be tried by separate subsequent hearing, is the preamble or recital, which is as follows: WHEREAS