Hildebrand (as executor of the estate of the late Elma Hildebrand) v SAS Trustee Corporation [2013] NSWIRComm 51

Industrial Relations Commission New South Wales Medium Neutral Citation: Hildebrand (as executor of the estate of the late Elma Hildebrand) v SAS Trustee Corporation [2013] NSWIRComm 51 Hearing dates: 6 November 2012 and 4 February 2013 (written submissions received 18 February 2013 and 11 March 2013) Decision date: 19 June 2013 Before: Walton J, Vice-President Decision: (1) The appellant shall file and serve submissions as to the final disposition of this appeal (including draft orders) within 14 days from the date of this judgment; (2) The respondent shall file and serve submissions as to the same within 14 days from the date of receipt of the appellant's submissions; (3) The appellant shall have a further seven days from the date of receipt of the respondent's submissions to file and serve any submissions in reply; (4) The submissions prepared by the parties should indicate whether the parties wish to be heard orally regarding the final disposition of the matter. Should either or both parties so elect, the Court will list the matter for further hearing after the closing date of the filing of submissions. Catchwords: SUPERANNUATION - appeal under s 88 of the Superannuation Administration Act 1996 against determination of SAS Trustee Corporation - appeal brought by John Hildebrand on behalf of the estate of his mother Elma Hildebrand - appellant was Mrs Hildebrand's attorney under an enduring Power of Attorney - essential issue on the appeal whether a letter sent by the appellant's solicitor's to STC on 20 April 2010 constituted a valid election by Mrs Hildebrand to commute her reversionary pension entitlement for the purposes of ss 21C and 91 of the Superannuation Act - three subsidiary issues raised by parties for resolution - those issues numbered two to four - issue two: whether appellant's solicitors had actual authority to write 20 April letter on behalf of Mrs Hildebrand - appellant had authority to instruct solicitors under valid Power of Attorney - appellant aware having received an STC letter dated 2 March 2010 of option to commute pension to a lump sum and the estimated value of the lump sum - appellant instructed solicitors to communicate election to STC via letter in a phone call on or around 19 April 2010 - conclusion: issue two answered in the affirmative - issue three: whether the election was ineffective because ambiguous as to whether it was a commutation in respect of the whole of the pension entitlement - election taken to be in respect of the whole of the pension - conclusion: issue three answered in the negative - issue four: whether the election had taken effect prior to Mrs Hildebrand's death notwithstanding the STC had not satisfied itself of her entitlement to a pension prior to death - statutory construction - ss 21C(6)(a) - s 91(1) - answers to question four in favour of the appellant - s 88 appeal - appropriate appeal to be upheld - need for further submissions re final disposition and orders - parties to provide further submissions as to final disposition of the appeal and orders Legislation Cited: Conveyancing Act 1919 Powers of Attorney Act 2003 Superannuation Act 1916 Superannuation Administration Act 1996 Cases Cited: Ballas v Theophilos (No 2) [1957] HCA 90; (1957) 98 CLR 193 De Bussche v Alt (1878) 8 Ch 286 at 310 Commissioner of Police v Eaton [2013] HCA 2; (2013) 294 ALR 608; (2013) 87 ALJR 267 Jovic v SAS Trustee Corporation [2007] NSWIRComm 102 McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177 Morley v SAS Trustee Corporation [2007] NSWIRComm 90 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Education and Communities [2013] NSWIRComm 32 Romeo v Papalia [2012] NSWCA 221 Tarn v Scanlan; Nielsen, Andersen & Company v Collins [1928] A.C. 34 Woollard v SAS Trustee Corporation [2012] NSWIRComm 51 Texts Cited: G E Dal Pont, Law of Agency (2001) G E Dal Pont, Law of Agency 2nd ed (2008) Category: Principal judgment Parties: John Hildebrand (as executor of the estate of the late Elma Hildebrand) (Appellant) SAS Trustee Corporation (Respondent) Representation: C S Simpson of counsel (Appellant) T M Ower of counsel (Respondent) Trenches McKenzie Cox Solicitors (Appellant) SAS Trustee Corporation (Respondent) File Number(s): IRC 555 of 2012