First Deed of Variation

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The first Deed of Variation that amended the terms of the trust (Regulations of the Fund) was executed on the 7 October 1931.

The Fund was originally named “The Provident and Guarantee Fund”, however the name was shortened to “The Provident Fund” in 1949.

The minutes in the Trustees’ Minute book for the meeting of the Trustees held on 19 May 1931 confirm that the conditions imposed by the Power of Amendment were complied with, namely:

  • the amending instrument was a Deed;
  • a majority of the Directors executed the Deed; and
  • a majority of the natural person Trustees also gave their consent.

The Deed was also duty stamped.

The number of natural person trustees had been increased from three to four by a Deed dated 10 September 1929.

All four of the following Trustees gave their assent to the first Deed of Variation:

  • Joseph King Samuel;
  • James Frederick Downer
  • John Richard Baker
  • John Henry Hammond

James Frederick Downer was the eldest son of Sir John Downer who drafted the original Trust Deed.

James Frederick Downer was also the first Chairman of Advertiser Newspapers Limited, the publisher of “The Advertiser” in Adelaide.

The Fund was established with £50,000 in 1913 and the Fund had grown to £245,886:1:3 by 1931.

Trustee Minutes 19 May 1931 Execution of the Deed of Variation 1931 Draft Deed of Variation 28 Jul 1930  

Minute Book Cover

A copy of the first Deed of Variation can be found on the following link:

1931-10-07 – Deed of Variation

The Deed of Variation recites Regulation 28 which is the Power of Amendment provided in the original Trust Deed made on the 23 December 1913 in the State of South Australia

The Deed of Variation was then executed in accordance with the requirements of Regulation 28, namely:

  • the amending instrument is a Deed;
  • a majority of the Directors of the sponsoring Employer executed the Deed; and
  • a majority of the Trustees executed the Deed.

  • The Deed of Variation added a Probationary Period before a male officer could be appointed and object of the pension trust {Regulation 35(a)}.

    However Regulation 35(b) allowed for the probationary period to be included in determining years of service, if the male officer made additional contribution to cover what his contributions would have been during the probationary period.

    The Amending Instrument Template

    The first Deed of Variation confirms the template that all subsequent Deeds of Variation should follow.

    The amending instrument is a Deed, which recites the amending power Regulation {Power of Amendment} and the Deed is then executed in accordance with the provisions of the Power of Amendment, namely:

  • a majority of the Directors of the sponsoring Employer execute the Deed of Variation; and
  • a majority of the Trustees also execute the Deed of Variation, confirming their assent in writing.

  • The New South Wales Court of Appeal reviewed key concepts related to varying the terms of a trust in Re Dion Investments Pty Ltd [2014] NSWCA 367. The Court stated at [44-45]:

    It is, of course, commonplace to speak of the variation of a trust instrument as such when referring to what is, in truth, variation of the terms upon which trust property is held under the trusts created or evidenced by the instrument. A provision of a trust instrument that lays down procedures by which it may be varied is, of its nature, concerned with variation of the terms of the trust, not variation of the content of the instrument, although the fact that it is the instrument that sets out the terms of the trust does, in an imprecise way, make it sensible to speak of amendment of the instrument when the reference is in truth to amendment of the terms of the trust.

    Where the trust instrument contains a provision allowing variation by a particular process, the situation is one in which the settlor, in declaring the trust and defining its terms, has specified that those terms are not immutable and that the original terms will be superseded by varied terms if the specified process of variation (entailing, in concept, a power of appointment or a power of revocation or both) is undertaken. The varied terms are in that way traceable to the settlor’s intention as communicated to the original trustee.

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