Dawson v Dawson [2019] NSWSC 826

Supreme Court New South Wales

Medium Neutral Citation: Dawson v Dawson [2019] NSWSC 826 Hearing dates: 8, 12 April 2019 Date of orders: 03 July 2019 Decision date: 03 July 2019 Jurisdiction: Equity Before: Henry J Decision: (1) Declare that the plaintiff and the first defendant were, by Deed dated 17 March 2014, appointed the "New Trustee(s)" of the Dawson Superannuation Fund (the Fund). (2) Declare that the plaintiff and first defendant continued as the Trustees of the Fund after the death of Peter Robert Dawson on 24 November 2015 and remain the Trustees of the Fund today. (3) Declare that the second defendant is not a Trustee of the Fund. (4) Order that the first defendant do all things reasonably necessary to provide and deliver up to the plaintiff the records and accounts of the Fund. (5) Order that the defendants pay the plaintiff's costs of the summons. (6) Vary order 2 of the orders made by Hallen J on 20 September 2018 so that it reads: upon the plaintiff, by his counsel, giving the usual undertaking as to damages to the Court, and by consent and until 5pm on Tuesday 9 July 2019 or until some other date as determined by the Court: (a) the first defendant be restrained from taking any further action in relation to the plaintiff's status as trustee of the Fund which is the subject of the dispute in these proceedings; and (b) the first and second defendant be restrained from dealing with, taking possession of, or in any way disbursing, the assets of the Fund without the consent of the plaintiff or an order of the Court. (7) Re-list the matter before me at 9am on Tuesday 9 July 2019. Catchwords: EQUITY – trusts and trustees – superannuation funds – dispute about identity of trustee – whether trustee with enduring power of attorney appointed in personal capacity and ceased as trustee when power of attorney terminated – whether trustee ceased to hold office under superannuation fund deed – whether s 17A Superannuation Industry (Supervision) Act 1993 (Cth) operated to appoint deceased member's executor as trustee – whether executor validly appointed trustee under superannuation fund deed – effect of purported ratification of prior appointment of trustee where no consent by existing trustee Legislation Cited: Powers of Attorney Act 2003 (NSW) s 10 Superannuation Industry (Supervision) Act 1993 (Cth) ss 17A, 120 Trustee Act 1925 (NSW) s 70 Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Cases Cited: Ainsworth v Davern [2018] VSC 80 Apotex v Servier (No 2) (2012) 293 ALR 272; [2012] FCA 748 Cantor Management Services v Booth [2017] SASCFC 122 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510 Douglas v James [2015] NSWSC 1403 Exception Holdings Pty Ltd (in liq) v Albarran & Ors [2005] NSWSC 677 Ioppolo v Conti (2015) 293 FLR 412; [2015] WASCA 45 Johnson v Trotter; Re Estate of Trotter [2006] NSWSC 67 Katz v Grossman [2005] NSWSC 934 Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261 Re Marsella; Marsella v Wareham (No 2) [2019] VSC 65 Texts Cited: Australian Superannuation Law and Practice GE Dal Pont, Powers of Attorney (2nd ed, 2014, Lexis Nexis) JD Heydon, MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, Lexis Nexis) Stuart Jones, Australian Superannuation Handbook: 2014-2015 (1st ed, 2014, Thomson Reuters) Category: Principal judgment Parties: Tony Allen Dawson (plaintiff) Estelle Ivy Dawson (first defendant) George Holland (second defendant) Representation: Counsel: D Flaherty (plaintiff) P Tanevski (first and second defendant)