The Right to Information

Members and Beneficiaries have a right to information about the management of their superannuation trust.

Powell J in Spellson v George (1987) 11 NSWLR 300 ruled in relation to a discretionary trust that:

“A person who is one of the potential objects of the exercise of a discretionary power of appointment in respect of a trust fund (ie a potential recipient of a benefit), has the right to seek, and obtain, from the trustee of that fund, information concerning the trustee’s management of that trust fund, the exercise of which does not depend upon it being alleged that the trustee of that fund, has, in the course of his management of that trust fund, been guilty of fraud or other breaches of trust.”

Superannuation trusts are strict trusts and not discretionary trusts so the principles articulated by Powell J have even more force in relation to superannuation trusts

Principles of the Law of Trusts (2nd ed, 1990) state at [936.1]:

The legal title and rights to possession are in the trustees: all the beneficiary has are equitable rights against the trustees. That a particular trust instrument may enjoin the trustee to allow beneficiaries the right to enjoy trust property does not affect this general principle. The beneficiary’s right to inspect such trust documents are founded therefore not upon any equitable proprietary right which he or she may have in respect of those documents but upon the trustee’s fiduciary duty to keep the beneficiary informed and to render accounts.”

Section 1017C of the Corporations Act 2001 provides a statutory right for the members and beneficiaries of regulated superannuation funds to have access to certain “trust documents” and information about the administration of the fund.

Subsection 1017C(2) of the Corporations Act 2001 provides a right to have access to information concerning the administration of the fund and it is an indictable offence for “Responsible Persons” of the trustee to contravene subsection 1017C(2).

The beneficiaries are also entitled to have such trusts accounts and documents provided to their accountants {Kemp v Burn (1863) 4 Giff 348, Re Cowin (1886) 33 Ch D 179, Re Londonderry’s Settlement [1965] Ch 918} or legal advisers {Hawkesley v May [1956 1 QB 304}, except for those sorts of documents to which the beneficiaries have no entitlement.

Trustees should not be tardy or reluctant in providing appropriate information.{Kelly v Bruce [1907] SALR 174.

Lord Wrenbury in O’Rourke v Darbishire [1890] AC 581 at 626-627 stated:

“The beneficiary is entitled to see all trust documents because they are trust documents and because he is a beneficiary. They are in a sense his own. Action or no action, he is entitled to access them…The proprietary right is a right to access to documents which are your own”.

The beneficiary’s right to have have access to “trust documents” under the general law in Australia is discussed by Dal Pont in “I Want Information! Beneficiaries’ Basic Right or Court Controlled Discretion?” [2013] UTasLawRw 3; (2013) 32(1) University of Tasmania Law Review 52

A copy of this document can be found here.

In the course of trust litigation the beneficiaries have a right to the discovery of documents which have been produced in the administration of the trust and which have been paid from out of the Trust Estate including documents providing legal advise on the general administration of the trust. However beneficiaries do not have a legal right to have access to legal advice obtained by the trustee or trustees to defend an allegation of breach of trust {Gray v BNY Trust Company of Australia Limited [2009] NSWSC 789}

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This tab updated on 30 July 2015