The “Jarrett Deed” purported to replace the “Regulation” with a new set of purported “Rules“.
The “Jarrett Deed” is void and ineffective for several reasons as discussed further here.
The purported “Rules” purported to abrogate the right of widows of qualifying male officers to receive a survivorship pension and to replace a life pension with a token lump sum benefit.
However it is important to note that the existing Regulations that provide the pension benefits have not themselves been repealed. THey have just been ignored by the incumbent corporate Trustees
The Regulations of the Fund were amended by the consolidation Deed of Variation so as to provide increased benefits to male officers who were forced to leave the service of the Employer due to ill health or retrenchment.
However the purported “Rules” in fact penalise those who are forced to leave the service of the Employer due to ill health or retrenchment.
Furthermore the purported “Rules” purport to allow “the Trustee” to provide benefit payment from the Trust Estate of the occupational pension fund established on the 23 December 1913 to female members of staff, which the Elder Smith & Co Limited Provident Funds Act 1963 (SA) confirms to be prohibited.
On page 232 of the enactment the following is stated:
“…AND WHEREAS Regulation 50 more particularly set forth but any alteration to the said regulations which would authorise the application or use of any part of the Fund for the provisions of pensions or benefits for any persons other than male persons on the staff of the company who are contributors to the Fund and the wives widows and dependants of such persons is prohibited..”
The Elder’s Trustee & Executor Company Limited Provident Funds Act 1971 (SA) confirms that a separate trust, the Elders-GM Women’s Provident Fund was established to provide benefits to female staff by a Deed made on the 17 December 1963.
Therefore the purported “Rules” can be impugned under the doctrines of:
- an “excessive exercise” of the Power of Amendment, and
- an “improper exercise” of the Power of Amendment (otherwise known as a “Fraud on a Power“)
An “Excessive Exercise“of a Power
If a trustee makes benefit payments to persons who are not “objects” of the trust as determined by the trust instrument then the trustee commits a Breach of Trust. If an attempt is made to amend the terms of the trust with the object of providing benefits to persons not prescribed as “objects” of the trust in the original Trust Deed then any such purported amendment would be void and ineffective under the doctrine of an “excessive exercise” of the Power of Amendment.
An “Improper Exercise” of a Power (Fraud on a Power)
All powers provided to a trustee are “fiduciary powers” and must be used to promote the purpose of the trust and in the interests of the beneficiaries and not for an improper purpose or an ulterior motive.
A purported amendment that would reduce the value of retrenchment or retirement entitlements is clearly not in the interests of the members and beneficiaries of the superannuation trust.
The purported “Rules” are an example of a “Fraud on a Power” since the purported “Rules” purport to drastically reduce retrenchment and retirement benefits.
More details on the drastic reduction in retrenchment and retirement benefits brought about by the fraudulent “Rules” can be found here.
This tab updated on 15 March 2015