Summary of Laws Broken

The High Court of Australia has noted that a superannuation entitlement is often the most valuable asset many people will acquire in their working lifetimes, more valuable in many cases than the persons own home.

It is therefore a reasonable expectation that there would be many laws to protect such a valuable asset.

However laws are not worth the paper there are written on if there is no will to enforce these laws or access to the law is not available to the victims of crime.

The following is a summary of contraventions of the law committed by the purported Trustee of the fund.

It should also be noted that the purported corporate Trustees never sought advice and directions for a Court of competent jurisdiction as to how to properly construe the terms of the trust established on the 23 December 1913 in the State of South Australia.

The General Law of Trusts

– Purported trustee not appointed in accordance with the provisions of the terms of the trust as properly construed;

– Acting dishonestly and not in good faith;

– Failure to obey the terms of the trust as properly construed;

– Acting under the dictation of a third party;

– Failure to act in the best interests of the beneficiaries;

– Failure to advise beneficiaries of their entitlement under the terms of a trust;

– Refusal to produce Deeds of the Trust to the cestuis que trust when access requested;

– Failure to pay the correct benefits to the correct beneficiaries;

– Misappropriation of fund assets;

– Failure to take legal proceedings against former purported Trustee for Breach of Trust;

– Transfer of the Trust Estate in Breach of Trust.

General Law – Directors

– Failure to exercise powers in good faith in the best interests of their company.

State Statutory Law

Trustee Act 1936 (SA)

Section 84B {Disclosure obligations} [Link]

Trustee Regulations 2011 (SA)

Regulation 5 {Prescribed Records} [Link]

Commonwealth Statutory Law

Corporations Act 2001

Section 180 {Care and diligence of Directors} [Link]

Section 181 {Good Faith by Directors} [Link]

Section 184 {Intentional Dishonesty} [Link]

Section 912A {Honest provision of financial services by AFS Licensees} [Link]

Subsection 1017C(2) {Disclosure obligations} [Link]

Subsection 1017C(5) {Disclosure obligations} [Link]

Subsection 1041H(2)(vi) {Duty not engage in misleading and deceptive conduct with respect to beneficiaries} [Link]

Section 1041G {Dishonest Conduct} [Link]

The penalties for the contravention of certain provisions of the Corporations Act 2001 are found in Schedule 3. [Link]

Superannuation Industry (Supervision) Act 1993

Subsections 29L(2)(c) and 29L(2)d {Lodgement of the original Trust Deed and Deeds of Variation for Fund registration}

Subsection 29M {Granting of Fund registration Number R10004830 by APRA}

Section 29E {Compliance with conditions imposed on RSE Licence} [Link]

Subsection 52(2)(a) {Duty to act honestly} [Link]

Subsection 52(2)(b) {Duty to exercise care and diligence} [Link]

Subsection 52(2)(c) {Duty to act in the best interests of the beneficiaries}> [Link]

Subsection 52(2)(d) {Duty to avoid and properly manage any conflicts of interests}> [Link]

Subsection 52(2)(j) {Duty to allow access to prescribed documents and information concerning the fund}> [Link]

Part 9 {“Equal Representation Rule”} [Link]

Part 18 {Provisions for the amalgamation of funds} [Link]

Superannuation Industry (Supervision) Regulations 1994

Regulation 4.08(3) {“Voting Rule”} [Link]

Regulation 13.16 {Maintaining vested benefits}

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