How the Prime Minister can Prove the Fraud

Evidence Provided

The following documents have been included in evidence provided to Commonwealth Attorney-General:

  • A copy of a consolidation Deed of Variation dated 6 May 1958, and
  • A copy of a purported Deed of Variation dated 26 August 1986.

 

It should be noted that Responsible Persons of the purported corporate Trustee, criminally concealed the consolidation Deed of Variation dated 6 May 1958 from the cestuis que trust (ie members and beneficiaries) and that a copy of this important Deed was obtained with the assistance of the Deputy Premier and Attorney-General of South Australia, the Hon John Rau MP.

A “beneficiary”, in ordinary language, is a person for whose benefit a trust is to be administered and who is entitled to enforce the trust according to its terms

 Kafataris  v The Deputy Commissioner of Taxation [2008] FCA 1454

 

The former Fund Secretary, Ms Margaret O’Halloran, represented the purported Deed of Variation dated 26 August 1986 as the “Trust Deed” of the trust, when the legitimate “Trust Deed” that established the occupational pension trust was made on the 23 December 1913.

The 1913 Trust Deed was drafted by Sir John Downer who also co-drafted the Australian Constitution.

The parties to the document dated 26 August 1986 are as follows:

Parties to the 1986 Deed

The purported corporate Trustee that was a party to the “Jarrett Deed” had an “all-star cast” of Directors who had been the subject of two major investigations by the former National Crime Authority (NCA).

The National Crime Authority was replaced by the Australian Crime Commission.

Mr Jarrett served a term of imprisonment for dishonesty, following the investigation known as Operation Albert.

The document dated 26 August 1986 should have been a “Red Flag” document to any investigative agency.

Proving the Fraud

The fraud can be proven using just two documents and an Act of the Parliament of South Australia.

Proving the Fraud

The Act of Parliament is the Elder Smith & Co Limited Provident Funds Act 1963 (SA).

Why was this Act of Parliament necessary?

Refer to The Laws of Australia {Thompson Reuters) at [15.14.1450] under the section “It is the trustee’s plainest duty to obey the terms of the trust” the following is stated:

“Where the trust instrument confers a power of amendment, the conditions and restrictions imposed on its exercise must themselves be strictly observed.”

 The Act of Parliament confirms this principle of trust law. The Power of Amendment provided by the original Trust Deed prohibited the application of the funds of the trust to unauthorised purposes. Therefore the holder of the Power of Amendment, the Board of the sponsoring Employer, could not amend the terms of the trust to allow benefits to be paid to employees of the new company that had acquired the original sponsoring employer.

Therefore an Act of Parliament was required to amend the terms of the trust, that was otherwise prohibited by the Power of Amendment contained in Regulation 50.

Examples of where the Courts have applied this principle of trust law are listed in Appendix A.

Here are the steps that the Prime Minister needs to take in order to prove Australia’s Worst White-Collar Crime:

 

Step 1

Go to Regulation 50 in the consolidation Deed of Variation dated 6 May 1958 {Refer to Appendix A}.

Regulation 50 provides the Power of Amendment.

Note how it is a condition imposed by the amending power {Regulation 50} that a majority of the Directors of the sponsoring Employer must execute any Deed of Variation.

This condition cannot be ignored as confirmed by the Elder Smith & Co Limited Provident Funds Act 1963 (SA).

Step 2

Go to the testimonium (execution clause) of the 1958 Deed of Variation {Exhibit B} and note how a majority of the Directors have executed this Deed. In fact all the Directors in 1958 executed this Deed.

Step 3

Go to the testimonium (execution clause) of the purported 1986 Deed of Variation {Exhibit C} and count how many Directors of the sponsoring Employer have executed this Deed.

Step 4

Refer to the number of Directors required to constitute a majority in 1986 {Exhibit D}.

The Fraud is Proven

By counting the number of Directors’ signatures, the Hon Tony Abbott MP, can prove Australia’s Worst White-Collar Crime, committed by a well known white-collar criminal and his associates.

How difficult is that?

Mr Jarrett served a term of imprisonment for dishonesty.

The “Jarrett Deed” is void ab initio and the terms of the trust {Regulations of the Fund} were not amended by the “Jarrett Deed” or any instrument executed after the “Jarrett Deed”.

The right of a widow to receive a survivorship pension was not abrogated by the “Jarrett Deed” and a token lump sum benefit did not replace the entitlement to a pension for life for qualifying male officers.

Next Steps for the Prime Minister

It is the policy of the Australian Labor Party to provide 100% compensation to members and beneficiaries of large Government regulated superannuation funds who suffer a loss due to theft or fraudulent conduct.

The Leader of the Opposition, the Hon Bill Shorten MP, delivered on this PROMISE when he was the Minister responsible for superannuation in the previous Government in relation to the Trio Capital Superannuation Fraud.

The Prime Minister should ask the incumbent Minister responsible for Superannuation, the Assistant Treasurer,  the Hon Josh Frydenber MP, to publicly confirm the compensation policy of the Coalition Government and to then approve compensation payments to the victims of Australia’s Worst White-Collar Crime.

Appendix A

 

Appendix B

Exhibit C

Exhibit D

 

 

Appendix A

Cases where the Courts have declared purported Amending Instruments Invalid

  • Briggs v Gleeds (Head Office) [2014] EWCH 1178 (Ch)
  • Walker Morris Trustees Ltd. v Masterson & Anor [2009] EWHC 1955 (Ch)
  • Sovereign Trustees Ltd & Anor v Glover & Ors [2007] EWHC 1750 (Ch)
  • Trustee Solutions Ltd & Ors v Dubery & Anor [2006] EWHC 1426 (Ch)
  • Meier v Dorzan Pty Limited & Anor [2010] NSWSC 664
  • NSW MASONIC YOUTH PROPERTY TRUST & ANOR v HER MAJESTY’S ATTORNEY-GENERAL IN AND FOR THE STATE OF NSW & ANOR [2009] NSWSC 1301
  • Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No.2)[2010] NSWSC 285
  • Re Cavill Hotels Pty Ltd[1998] 1 Qd R 396.