Cuesuper Pty Ltd [2009] NSWSC 981

New South Wales Supreme Court

CITATION : Cuesuper Pty Ltd [2009] NSWSC 981

HEARING DATE(S) : 11 September 2009

JUDGMENT DATE : 18 September 2009

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Directions given as sought.

CATCHWORDS : TRUSTS – SUPERANNUATION – REMUNERATION – Whether trustee justified in amending trust deed of superannuation fund to provide for remuneration of trustee.

LEGISLATION CITED : Superannuation Industry (Supervision) Act 1993 (Cth) Trustee Act 1925 (NSW) – s 81

CATEGORY : Principal judgment

Duke of Norfolk's Settlement Trusts, In re [1982] Ch 61 CASES CITED : Queensland Coal and Oil Shale Mining Industry (Superannuation) Ltd, Re [1999] 2 Qd R 524 Robinson v Pett (1734) 3 P Wms 249; 24 ER 1049

PARTIES : Cuesuper Pty Ltd (Plaintiff)

FILE NUMBER(S) : SC 3280/09

COUNSEL : H.K. Insall SC (Plaintiff)

SOLICITORS : Mercer Legal (Plaintiff)

3280/09 Cuesuper Pty Ltd (ABN 79 065 018 868) a.t.f. Cuesuper (ABN 22 500 823 949)

JUDGMENT

18 September, 2009

Introduction

1 The Plaintiff is the trustee of a superannuation fund ("Cuesuper") which is regulated by the Superannuation Industry (Supervision) Act 1993 (Cth) ("the SIS Act"). 2 Cuesuper was established by a Trust Deed dated 28 August 1970 in order to provide superannuation benefits for the employees of the Association of New South Wales Credit Unions. There were originally four trustees of the fund, all individuals employed by the Principal Employer, as that term was defined by the Trust Deed. It was not a large fund. In 1970 it had sixty members, nineteen participating employers and assets under management of $33,600. Today, Cuesuper has 6,836 members, 274 participating employers and assets under management of $288M. 3 When Cuesuper was established, the Trust Deed made no provision for the trustees to be remunerated for carrying out their duties. This was doubtless because the duties of the trustees at that time were not very onerous having regard to the size of the fund, and there was a widespread adherence to the old principle of equity that a trustee is expected to act gratuitously: see e.g. Robinson v Pett (1734) 3 P Wms 249; 24 ER 1049. 4 The increasing use of trustees in a commercial context has modified that general expectation. It would be unknown today that a trustee of a large managed investment scheme or superannuation fund would act gratuitously. 5 Nevertheless, the Trust Deed in the present case not only makes no provision for the trustee to be remunerated, it expressly states in Clause 3.23 that the trustee shall not be remunerated. 6 In these circumstances, the Plaintiff applies to the Court for the amendment of the Trust Deed to provide for its remuneration. The application is made on three bases. 7 First, the Plaintiff seeks an order pursuant to s 81 of the Trustee Act 1925 (NSW) to confer power on it to remunerate itself from the trust fund. Second, the Plaintiff invokes the inherent jurisdiction of the Equity Court to order remuneration of a trustee. Third, the Plaintiff seeks a direction from the Court that it is justified in using the power of amendment conferred on it by the Trust Deed to amend the Deed to provide for its remuneration. Parties