Who has a “Beneficial Interest” in the Fund?

It is a fundamental duty of a trustee to pay the correct benefits to the correct beneficiaries.

The “authorised purpose” of the fund established on the 23 December 1913 in the State of South Australia and more recently known as the AusBev Superannuation Fund has been confirmed by an enactment of the Parliament of South Australia.

The Elder Smith & Co Ltd Provident Funds Act 1963 (SA) confirms that the “authorised purpose” of this fund is to provide “pensions and benefits” to certain “male officers, their wives widows and dependants”

This enactment also confirms that a separate trust was established to provide pensions to female staff members.

The following is what the Hon. G. O’H Giles M.L.C. stated in the Minutes of Evidence for the Select Committee on the Elder Smith & Co Ltd Provident Funds Bill 1963 on 3 September 1963 following a question from the Attorney-General, the Hon Colin Rowe M.L.C.:

“The present fund – that is, Elder’s Provident Fund – was established 50 years ago. It is one of the oldest Provident Funds in Australia. It is a pension fund, and not a Provident Fund in the lump sum sense. It provides pensions after 15 years of service. It provides death benefits, equal to three years’ salary, immediately after entry to the fund. The fund is designed to provide an attraction to people to join the company’s service, an encouragement to them to remain, and security for those officers who belong to the company and the fund”.

In a pension fund, membership of the fund terminates with death and not with the termination of a Contract of Employment.

Even in a lump sum fund where membership does terminate with the contract of employment, the former member retains a “beneficial interest” in the fund as a “beneficiary” of the superannuation trust, since this give the former member standing to sue the trustees for a Breach of Trust.

There have been a number of rulings by the Courts that have confirmed that former members of superannuation funds retain a “beneficial interest” in the fund, even though they are no longer “members” of the fund as such.

These cases are covered in more detail here.

In a letter dated 3 December 2014, representation were made that a purported “successor fund transfer” had taken place where only “Current Members” of the fund were transferred to the “Plum Superannuation Fund”.

However on the 20 January 2014 $443,207,841 was transferred from on accounting entity to another. This is not the basis of a “successor fund transfer” as represented to members of the fund.

“Equal rights and benefits” have not been provided to persons who have a “beneficial interest” in the fund in question.

A document based on several fraudulent documents has been prepared by PFS Nominees Pty Ltd for the purpose of deceiving the cestuis que trust of their lawful entitlements.

The bogus “successor fund transfer” is covered in more detail here.

PFS Nominees Pty Ltd (the “NAB Trustee”) has simply become a “de facto trustee” of the occupational pension fund established on the 23 December 1913 in the State of South Australia. The trusts associated with this fund have not been revoked and the associated Trust Estate (Fund) wound-up in accordance with the provisions of Regulation 52.

PFS Nominees Pty Ltd has been unable to produce any Deed of Variation executed in accordance with the provisions of the Power of Amendment {Regulation 50} that has repealed either of the following Regulations of the Fund:

  • Regulation 29 – the provision of life pensions to qualifying male officers; and
  • Regulation 30A – the provision of a survivorship pension to the widows of qualifying male officers.

    Trustee’s duty to seek Judicial Advice

    A trustee has a duty to act in the “best interests” of the beneficiaries of the trust and if the trustee is uncertain as to whom has a “beneficial interest” in the trust, then the trustee should seek Judicial Advice. This is especially important where there are criminal sanctions if a trustee fails to provide access to the Deeds of the trust and “responsible persons” refuse access to these Deeds based on a flawed interpretation of the terms of the trust.

    In the letter dated 3 December 2014 {copy below} the following representations are made:

    “Our records indicate that you were not a Current Member and as such do not have an interest in the Plum Superannuation Fund. Should you content otherwise appropriate evidence of your existing interest in the AusBev Superannuation Fund, as established in a court of competent jurisdiction or a tribunal with jurisdiction to decide, is required to allow any requests you may which to make to be addressed accordingly.”

    Now this letter demonstrates and ignorance of the laws of trust in Australia. Only a court established under Chapter III of the Commonwealth of Australia Constitution Act can construe the terms of a contract or a trust. In the case of a trust only a Chapter III Court can definitively determine who has a “beneficial interest” in a particular trust.

    In any event an Act of Parliament confirms that the fund in question is a pension fund and membership of a pension fund terminates with death and not with the termination of a Contract of Employment. A Court is not about to contradict an Act of Parliament.

    The onus is not on the beneficiaries to establish whether they have a beneficial interest, the onus is on the trustee (even a de facto trustee) to establish who does in fact have a beneficial interest if there is a dispute in relation to the matter.

    PFS Nominees Pty Ltd can lodge an Originating Motion pursuant to Order 54.02 of the Supreme Court {General Civil Procedure) Rules 2005 (Vic)< using Form 5B or 5C. Costs for this proceeding will be paid out of the Trust Estate of the Fund and not out of the Trustees own pocket.

    By seeking such Judicial Advice, PFS Nominees Pty Ltd will be acting in the “best interest” of the beneficiaries and also protecting employees and Directors from criminal proceedings in relation to the concealment of the Deeds of the trust.

    Plum - Membership

    The letter on the following link was sent to the Fund Secretary requesting that the Trustee seek Judicial Advice as to who has a beneficial interest in the occupational pension trust established on the 23 December 1913 in the State of South Australia.

    Fund Secretary 16 March 2015

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    This tab updated on 16 March 2015