The “Elliott Resolution”

The last Deed of Variation executed before the purported “Resolution” dated 20 December 1982 is a Deed of Variation executed on 20 February 1977. A copy of this Deed of Variation can be found here.

This document recites Regulation 50 as the Power of Amendment.

The next purported amending instrument, the purported “Resolution” dated 20 December 1982, recites a completely different purported Power of Amendment, a purported “Rule 1.9.1″.

So where did purported “Rule 1.9.1″ come from?

This is covered in more detail as follows.

Extracts from the purported “Resolution”

A complete copy of this document can be found on the link at the bottom of this page.

{Arrow A}

This document does not bear a duty stamp as required for both a “Deed” or an “Agreement” in 1982 pursuant to the Duty Stamp Act 1923 (SA).

{Arrow B}

The Deed executed on 23 December 1913 that established the occupational pension trust is recited.

{Arrow C}

The parties to the original Trust Deed are recited as the original Trustees and the sponsoring Employer, Elder Smith & Co Limited.

{Arrow D}

The Provident and Guarantee Fund is then known as The Provident Fund and the “ regulations were adopted for the purpose of governing the management, administration and application of the Fund (hereafter called “The Regulations”.”

{Arrow E}

Recital B states:

“The said Deed and the Regulations have been varied, altered and amended from time to time (the Regulations as amended to the date hereof being hereinafter called “the Rules”).

[IMPORTANT: No mention is made that the “Regulations” have been repealed in their entirety any replaced by a new set of provisions called “the Rules”Recital B merely states that any existing Regulation are now referred to as “Rules”].

Slide1

{Arrow F}

Recital C recites the Elder Smith & Co Limited Provident Funds Act 1963 (SA) that empowered any “successor company” to replace the original Employer sponsor, the first being Elder Smith Goldsbrough Mort Limited that was renamed Elder IXL Limited in 1982. The “powers, authorities and discretions” of Board of Directors of Elder Smith & Co Limited were thereby conferred on the Board of Directors of the “successor company”. One of the most important “power” conferred on the Directors of Elder Smith & Co Ltd was the “Power of Amendment” conferred by Regulation 28 in the orginal Trust Deed {renumbered to Regulation 50 as referenced in the Elder Smith & Co Limited Provident Funds Act 1963 (SA).

{Arrow G}

Recital G states:

“By Rule 1.9.1 of the Rules the Trustees may with the consent of the Board of Directors of the Principal Employer at any time by resolution, alter modify or add to the provisions of the Rules…….”

However Recital B states that the provisions previously called “Regulations” are now called “Rules”.

In the previously executed Deed of Variation the Power of Amendment was Regulation 50 which conferred the Power of Amendment on a majority of the Directors of the sponsoring Employer, subject to the consent in writing of a majority of the Trustee. Furthermore the amending instrument was prescribed to be a “Deed”.

So where does purported “Rule 1.9.1” come from?

Rule 1.9.1 purports that the power of amendment was conferred on the Trustees, subject to the consent of the Board of Directors of the Principal Employer. Furthermore Rule 1.9.1 purports that a Deed is not required and that a “resolution” can be used instead.

{Arrow H}

A constraint imposed by purported Rule 1.9.1 is that the Actuary of the Fund must certify that “in his opinion any such alteration, modification or addition will not substantially prejudice the value of the rights secured for or in respect of any Member of the Fund..”.with the proviso that such a certificate is not required if at least 75% of the Members of the Fund for the time being give their consent in writing for the proposed amendment.

Slide2

{Arrow I}

Further constraints are similar to those imposed by Regulation 50, however, the Elder Smith & Co Limited Provident Funds Act 1963 (SA) confirms that the “authorised purpose” of the fund is to provide “pensions and benefits” to certain “male officers, their wives, widows and dependants”.

Purported constraint or fetter of Rule 1.9.1(a)is:

“the provision of benefits for “Employers” (as defined in the Rules) their spouses, widows, widowers, children or dependants”.

Therefore:

  • “pensions and benefits”” has become just benefits”;
  • “male officers” have become Employees
  • “wives, widows and dependants” has become spouses, widows, widowers children or dependants

  • Slide3

    {Arrow J}

    Recital G purports that the Actuary of the Fund has certified that in his opinion the purported alterations to be effected by the “Resolution” will not substantially prejudice the value of rights secured for or in respect of any member of the Fund.

    This would indicate the Actuary was lead to believe that the purported provisions of the “Resolution” were in addition to the already existing provisions or “Regulations” that had been renamed as “Rules”. That is the previous Regulations have not been revoked in their entirety.

    {Arrow K}

    The incumbent natural person Directors are named as:

  • ALAN GORDON MCGREGOR
  • JOHN DORMAN ELLIOTT
  • RICHARD COLIN OLIVER
  • GLENN BAAY RODDA
  • THEODORE SEARLE AMBROSE

  • Slide4

    {Arrow L}

    A purported Rule 1.2 is deleted, however there is no evidence of what purported Rule 1.2 is.

    {Arrow M}

    New purported Rule 1.2.1 states:

    “If one of the Trustees shall be a natural person, there shall be no less than four Trustees. If no Trustee is a natural person there may be such lesser number of Trustees as the Board may by resolution determine”

    {Arrow O}

    New Purported Rule 1.2.2 states:

    “The Principal Employer shall have the right to remove any Trustee. The Principal Employer shall have the right to appoint a company or natural person to act as Trustee either in place of any company or natural person who has ceased t be a Trustee or as an additional Trustee….”

    Slide5

    {Arrow P}

    The purported Power of Amendment Rule 1.9.1 required the consent of the Directors of the company. A company is a separate legal person. If the consent of the company was required this should have been clearly stated in purported Rule 1.9.1.

    The consent was given by the company as witnessed under the Common Seal of the company by one Director and the Company Secretary.

    Slide6

    {Arrow Q}

    The natural person Directors executed the document and their signatures were witnesses by the Company Secretary.

    The words used before the signatures were “SIGNED as a DEED….” however the document itself was described on its face as a “Resolution” and was not duty stamped as a Deed.

    Previous Deeds of Variation have described themselves on their face as a “Deed”, using words such as “DO BY THIS DEED” and they had been duty stamped as a Deed and the words “SIGNED, SEALED AND DELIVERED” used before each signature executing the Deed, as is the general customer for the execution of Deeds.

    {Arrow R}

    No Actuary’s Certificate has been attached as a Schedule to this document as confirmation that the Fund Actuary has in fact certified the proposed amendments.

    Slide7

    A Critique of the “Elliott Resolution”

    The original Trust Deed in Regulation 28 provided a power to amend the terms of the trust to the Directors of the original sponsoring Employer and the Elder Smith & Co Limited Provident Funds Act 1961 (SA) then provided this power to the Directors of any “successor employer”.

    The Regulation 28 was renumbered to Regulation 44 which was intern renumbered to Regulation 50 in the consolidation Deed of Variation dated 6 May 1958. The holder of Power of Amendment remained the Directors of the sponsoring Employer

    A condition imposed by the original Trust Deed was that a Deed must be used as the amending instrument.

    All Deeds of Variation between 1858 and 1977 recited Regulation 50 and were executed in accordance with provisions of Regulation 50.

    However the document signed by John Elliott describes itself on its face as a “Resolution” and not a “Deed” and the document has not been Duty Stamped as a Deed (or even as an Agreement).

    Instead of reciting Regulation 50, the document recites a purported “Rule 1.9.1″ as the purported Power of Amendment.

    However the NAB Trustee (PFS Nominees Pty Ltd) has not been able to produce a Deed of Variation executed in accordance with Regulation 50 that has repealed Regulation 50 and added “Rule 1.9.1″ which is materially different to Regulation 50.

    Furthermore, even if it was possible to materially alter a Power of Amendment, the “Resolution” dated 20 December 1982 has not even been executed in accordance with the purported provisions of “Rule 1.9.1″.

    Purported “Rule 1.9.1″ requires the Directors to consent to the proposed amendment. Purported “Rule 1.9.1″ does not require “the company”, which is a separate legal person to consent to the amendments, and yet that is how this document has been executed.

    Furthermore, purported “Rule 1.9.1″ requires an actuary’s certificate and yet none has been attached confirming this requirement has been satisfied.

    Therefore there has been a failure to execute the document even if Regulation 50 had been repealed and replaced by purported “Rule 1.9.1″.

    The “Elliott Resolution” is void and ineffective and has not amended the terms of the occupational pension trust established on the 23 December 1913.

    This document cannot be used as justification for the sponsoring employer removing all five natural person Trustees from office on 20 December 1982 and purportedly appointed a Victorian resident corporate Trustee as a replacement Trustee.

    After the Deed of Variation dated 1973, the sponsoring Employer only held the power to remove two of the five natural person Trustees from Office.


    A copy of the “Elliott Resolution” can be found on the following link:Purported Resolution 20 Dec 1982


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