When the occupational pension fund was established on the 23 December 1913 there were three natural person trustees, all appointed and removed from office by the Board of sponsoring employer. By a Deed made on 10 September 1929, the number of natural person trustees was increased to four.
In 1958 the number of natural person trustees was increased to five, all of which were also appointed and removed from office by the Board of the sponsoring Employer.
In 1973 the Regulations of the fund were amended to give a power to the Members to remove and appoint two natural person trustees and for the Pensioner Members to removed and appoint one natural person Trustee. The sponsoring employer retained the power to remove and appoint the remain two natural person trustees.
The Regulations were amended by a Deed of Variation dated 28 August 1973. A copy of this Deed of Variation can be found here.
The power to remove and appoint trustees is generally construed as a “fiduciary power” even when held by a party who is not a “fiduciary“. That means the power must be exercised in good faith in the interests of the beneficiaries of the trust and not for an improper purpose or an ulterior motive. The Court can intervene if the exercise of a “fiduciary power” has not been properly exercised in in good faith and accordance with its purpose.
More information in relation to the power to remove and appoint trustees can be found here. .
Even though the sponsoring Employer had employees in all the mainland states, because the provisions of the Trustee Act 1936 (SA) required trustees of trusts established in South Australia to be resident in South Australia, the amended regulations stipulated that only Members and Pensioner Members resident with the “Metropolitan Planning Area” of Adelaide pursuant to Section 5 of the Planning and Development Act 1966-67 (SA) were eligible for election as Member-elected and Pensioner-elected natural person Trustees of the Fund.
More information on why the Trustee Act 1936 (SA) requires trustees to be resident in South Australia can be found here.
These changes took effect from 18 February 1974 as confirmed by Regulation 5 in the Booklet of Regulations provided to the Members of the Fund.
The Board of Elder Smith Goldsbrough Mort LimitedThe 1974 Annual Report of Elder Smith Goldsbgrough Mort Limited (ESGM) confirms that three of the five natural person trustees before Member-elections took place were Directors of ESGM; namely:
- John Neil McEwin (Deputy Chairman),
- Alfred Moxon Simpson, and
- Bruce Roy Macklin
This tab updated on 22 March 2015