Regulation 50 – The Power of Amendment

An amending power was provided in the original Trust Deed as Regulation 28, which was then renumbered to Regulation 44 in the Deed of Variation dated 26 October 1948 and then again renumbered to Regulation 50 in the consolidation Deed of Variation dated 6 May 1958.

The Power of Amendment is referenced by the Elder Smith & Co Limited Provident Funds Act 1963 (SA).

The original Trust Deed provided the Power of Amendment  to the Directors of Elder Smith & Co Limited and the Elder Smith & Co Limited Provident Funds Act 1963 (SA) amended the Regulations so the the Directors of  any “successor company” would hold the Power of Amendment.

A condition is imposed by Regulation 50 that a majority of the Directors must execute the Deed of Variation and another condition is that a majority of the Trustees must also give their consent in writing.

  Regulation 50  

It is important to note that the Power of Amendment was provided to the natural person Directors of the sponsoring Employer and not to the company itself which is a separate “legal person“.

Regulation 50 diagram  

Regulation 50 prescribes that the Directors of the sponsoring Employer may:

  • (i) alter all or any of the provisions of this Deed: and/or
  • (ii) make new provisions to the exclusion of; and/or
  • (iii) make new provisions in addition to all or any of the provisions of this Deed.

  • Therefore Regulation 50 provides a general power of revocation for the provisions of the Deed as well as a power of appointment for the provisions of the Deed

    Therefore an existing provision must be clearly revoked (repealed) before it is superseded by a new provision.

    Regulation 50 also prescribes that a Deed must be used to exercise the power of revocation and the power of appointment.

    Therefore an existing provision created by a Deed can only be repealed (revoked) by a Deed of Variation and not by an instrument under hand. More information of the power of revocation and power of appointment can be found here.

    NOTE: A separate power of revocation is provided by Regulation 52 to revoke the trust in its entirety and provides a procedure to distribute the associated Trust Estate(ie “the Fund”).


    facebooktwittergoogle_plusredditpinterestlinkedinmailby feather