The “Biggins Resolution”

The next purported amending instrument after the ““Jarrett Deed” is a purported “Resolution” dated 15 December 1989 that bears the signature of Ken Biggins.

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}

The document has been duty stamped unlike the “Elliott Resolution” that bears no duty stamp, that was executed on 29 December 1982.

{Arrow B}

The parties to the “Resolution” are the purported sole corporate Trustee, Elders Superannuation Ltd, and the sponsoring Employer, Elders IXL limited.

{Arrow C}

The Trust Deed dated 23 December 1913 that established in the fund is recited and the name of the fund is now the “Elders IXL Superannuation Fund.

The Elder, Smith & Co Limited Provident Funds Act 1963 (SA) is recited and it is noted that the name of Elder Smith Goldsbrough Mort Ltd was changed to Elders IXL Limited on 3 February 1982.

{Arrow D}

Recital D purports that Elders Superannuation Ltd was appointed as the sole trustee on 20 December 1982.

{Arrow E}

Recital E states:

“The Fund is governed and administered in accordance with rules or regulations (which rules and regulations as amended form time to time are hereinafter called “the Rules”) which were originally adopted by the said Deed made the 23rd day of December 1913.”

[IMPORTANT] No mention is made of the Regulations being revoked in their entirety and no mention is made of any Deed of Variation that would have revoked the Regulations

The inference is that the Regulations are now referred to as “Rules”.

{Arrow F}

Purported Power of Amendment, Rule 1.13.1 is recited and it is stated that “The Trustee” is exercising this purported power of amendment subject to the consent of the Principal Employer.

{Arrow G}

The purported “Resolution” has been executed under the Common Seals of two legal persons:

  • Elders IXL Limited, and
  • Elders Superannuation Limited.

  • Biggins Resolution #1

    Biggins Resolution #2b

    A Critique of the “Biggins Resolution”

    This document purports that the Power of Amendment is the purported Rule 1.13.1 which is materially different different to the Power of Amendment conferred by the original Trust Deed that established the trust.

    It is a common law requirement that another Deed is required to amend the terms of an earlier Deed and the original Trust Deed prescribed that a Deed must be used as the amending instrument.

    The original Trust Deed conferred the amending power on the Directors of the original sponsoring Employer and the Elder Smith & Co Provident Funds Act 1963 (SA) then conferred the amending power onto the Directors of any “successor employer”.

    No Deed of Variation has been produced that revokes the Power of Amendment {Regulation 50} and then adds purported Rule 1.13.1 and if such a document existed it would be void as ultra vires the Power of Amendment, since the “fetter” requiring a Deed has been released and a different party has been nominated as holding the Power of Amendment.

    Therefore the “Biggins Resolution” is void and ineffective.

    A copy of the “Biggins Resultion” can be found on the following link:

    The Biggins Resolution

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    This tab updated on 16 March 2015