Purportedly Repealed Provisions

It is not uncommon for an Amending Deed to repeal all the previous provisions and to replace them with new ones.

However this does not necessarily mean that the terms of the trust have been amended as purportedly provided by the Amending Deed.

The interplay between the original Trust Deed, the terms of the trust and subsequent Deeds of Variation or Amending Deeds is discussed by the New South Wales Court of Appeal in Re Dion Investments Pty Ltd [2014] NSWCA 367.

This case is discussed further here.

The issues of whether some provisions in the original Trust Deed were still in force after being purportedly repealed by an Amending Deed was the issue before the Court in HLSPF Pty Ltd v Brashs Pty Ltd [2001] VSC 512;(2001) 8 VR 602.

The transcript of these proceedings can be found here.

Summary of the Case

In 1966 the sponsoring employer established an employer-sponsored superannuation fund, which included Rule 15 and Rule 18 which related to the disposal of surplus assets in the event that the fund was wound-up.

In 1974 the provisions of the original Trust Deed that established the superannuation trust were repealed in their entirety by an Amending Deed, which did not include equivalent provisions to Rule 15 and Rule 18.

A different provision Clause 20 purportedly provided a different means of disposal of the surplus assets in the event that the fund was wound up.

The Court was required to determine if it was ultra vires the Power of Amendment (Rule 9) for Rules 15 and 18 to be repealed {deleted}.

The Court held that there was no basis to find that the benefits secured by the original Trust Deed has been repeated or improved by the Amending Deed such that Clause 20(1) of the Amending Deed would supersede Rule 15 and Rule 18.

The Court therefore ruled that Rule 15 and Rule 18 were still effective and in force even thought they had been purportedly repealed by the Amending Deed.


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