Personalised Transport Services Pty Ltd v AMP Superannuation Ltd [2005] NSWSC 396

New South Wales Supreme Court

CITATION : Personalised Transport Services Pty Ltd v AMP Superannuation Ltd [2005] NSWSC 396

HEARING DATE(S) : 15/04/05

JUDGMENT DATE : 29 April 2005

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Stood over for submissions by plaintiff as to re-constitution of proceedings.

CATCHWORDS : PROCEDURE - action for recovery of contributions paid to trustee of superannuation fund - persons in respect of whom contributions made not joined as parties - trustee adopting neutral stance - whether proceedings properly constituted

LEGISLATION CITED : Supreme Court Rules, Part 8 rule 15, Part 68 rule 5

Alsop Wilkinson (a firm) v Neary [1995] 1 All ER 431 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 CASES CITED : Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112 Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587 Sydney City Council v Greek Australian Finance Corporation Pty Ltd (1974) 32 LGRA 32

Personalised Transport Services Pty Limited - Plaintiff PARTIES : AMP Superannuation Limited as trustee for AMP Superannuation Savings Trust - Defendant

FILE NUMBER(S) : SC 5475/03

Mr J.E. Armfield - Plaintiff COUNSEL : Mr M.R. Elliott - Defendant

Gells - Plaintiff SOLICITORS : Mallesons Stephen Jaques - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

FRIDAY, 29 APRIL 2005

5475/03 – PERSONALISED TRANSPORT SERVICES PTY LIMITED v AMP SUPERANNUATION LIMITED AS TRUSTEE FOR AMP SUPERANNUATION SAVINGS TRUST JUDGMENT 1 The plaintiff carries on business as a freight courier and transport broker. In or about 1992, the plaintiff entered into an arrangement with the defendant (the trustee of a superannuation fund) under which the plaintiff paid to the defendant superannuation contributions for the benefit of persons working in the plaintiff's business. The plaintiff says that it paid over a total of $133,475.19 in this way by way of contributions between March 2000 and November 2001 in respect of certain persons for whom it believed it was required by Commonwealth law to provide superannuation. The plaintiff also says that that belief was incorrect because the persons in question were sub-contractors, not employees. The plaintiff therefore contends that the purpose for which the payment of $133,475.19 was made wholly failed; and that the moneys were paid under a mistake on the part of the plaintiff. 2 On the basis thus pleaded in its statement of claim, the plaintiff originally claimed, as against the defendant, a declaration that the moneys totalling $133,475.19 are held by the defendant on trust for the plaintiff and an order that the defendant repay those moneys. 3 The defendant, by its defence, denies liability as to moneys of two kinds. First, it says that it is not liable in respect of a total of $34,735.84 allocated to the accounts of beneficiaries and later paid out to those beneficiaries. Second, it says that it is not liable in respect of so much of the remainder of the total claimed as was applied by it as administration fees and in payment of insurance premiums to AMP Life Limited. Otherwise, the defendant, by the defence, did not admit the plaintiff's claims. 4 The plaintiff filed a reply to the defence by which it made it clear that it did not press its claim in respect of the sums paid out to beneficiaries and those applied as administration fees and insurance premiums. It was agreed at the hearing that those items together totalled $47,831.06, with the result that the plaintiff ultimately sought relief in terms of the statement of claim as to the balance of $85,644.13. 5 It will be clear at once that persons with a clear interest in the subject matter of the proceedings are not parties. I refer, of course, to the persons for whose benefit moneys were paid by the plaintiff to the defendant on the express footing that those moneys should be allocated to accounts of those persons in the books of the defendant and held, together with accretions, as part of a fund for the provision of superannuation benefits in respect of those and other persons. 6 That fund is known as the AMP Superannuation Savings Trust. The trust deed and rules according to which it is administered are in evidence. It is common ground that the persons I have called beneficiaries (of whom there are some 78) are "members" for the purposes of the trust deed and rules. The structure of the fund is such that the defendant, as trustee, may receive contributions from or in respect of a member and that the making of contributions causes to arise a duty of the trustee to pay a benefit to or in respect of the member upon any of several specified future events. 7 Given the structure of the fund, there can be no doubt that the defendant is a trustee and each of the members has a beneficial interest in the fund, although the situation is not one in which an identified part of the fund can be said to be held upon trust for each member. 8 The plaintiff says that there was no need for it to make the members (or even a representative of them) parties to the proceedings. It takes the view that the proceedings are "proceedings relating to a trust", as referred to in Part 68 rule 5 of the Supreme Court Rules so that, if the members are properly regarded as having "a beneficial interest under" the trust of which the defendant is trustee, there was no requirement that they be joined as parties. Part 68 rule 5(2) says: "In proceedings relating to a trust, all the persons having a beneficial interest under the trust need not be parties." 9 Part 68 rule 5(3), so far as is relevant, provides: "In proceedings relating to … a trust, the plaintiff may make parties such as he thinks fit of the persons mentioned in subrules … (2)." 10 Reference may also be made to Part 8 rule 15: "(1) Where any proceedings, including proceedings to enforce a security by way of foreclosure or otherwise, are brought by or against a trustee, executor or administrator: (a) it shall not be necessary to join as a party any of the persons having a beneficial interest under the trust or in the estate, (b) a judgment or order in the proceedings shall, subject to subrule (2), be as binding on those persons as it is on the trustee, executor or administrator.