Britroc Investments Pty Limited ACN 089 125 315 as trustee for the Nicholson Family Superannuation Fund v PT Limited ACN 004 454 666 [2015] NSWSC 524

Supreme Court New South Wales

Medium Neutral Citation: Britroc Investments Pty Limited ACN 089 125 315 as trustee for the Nicholson Family Superannuation Fund v PT Limited ACN 004 454 666 [2015] NSWSC 524 Hearing dates: 20 February 2015 Date of orders: 01 May 2015 Decision date: 01 May 2015 Jurisdiction: Equity Division Before: Slattery J Decision: See paragraph [52]. Catchwords: REAL PROPERTY – third party procured a fraudulent mortgage over the real property of a regulated self-managed superannuation fund, being held by a custodian as bare trustee – lender assigns its interest in the mortgage to the corporate trustee of the fund acting in its personal capacity – application to appoint new bare trustee and to cure irregularity where trustee/assignee is in position of both lender and borrower. HELD: new bare trustee appointed; vesting order to vest subject property in new trustee under Trustee Act, s 71; mortgage cancelled under Real Estate Act, s 138(3)(a) Legislation Cited: Real Property Act 1900, s 138 Superannuation Industry (Supervision) Act 1993 (Cth) Trustee Act 1925 (NSW), s 71 Cases Cited: Black Uhlans Inc. v New South Wales Crime Commission [2002] NSWSC 1060 Kennedy v Kennedy [2011] NSWSC 1619 Napier v Public Trustee (Western Australia) (1980) 32 ALR 153 Sayer v McHugh (1985) 1 NSWLR 440 Category: Procedural and other rulings Parties: Plaintiff: Britroc Investments Pty Limited ACN 089 125 315 as trustee for the Nicholson Family Superannuation Fund Defendant: PT Limited ACN 004 454 666 Representation: Counsel: M. Bennett