The Fraud – An Introduction

Most superannuation fund are based on the legal concept of a “trust“.

A “trust” is not a company but a set of legal obligations between a Trustee (or Trustees) and the beneficiaries which are enforceable in a Court of Law.

The “fund” relates to the assets held on trust for the beneficiaries who are the “objects” of the trust, while the fund is the “subject matter“.

Trustees must be appointed to the office of trustee in accordance with the terms of the trust or the general law.

When a trust has been properly constituted this creates duties for the Trustee (or Trustees) and corresponding legal rights for the beneficiaries.

Elements of a Trust

The beneficiaries have a legal claim on the assets held on trust and have a legal right to compel the proper administration of the trust.

This legal right to compel the proper administration of the trust has been described by the High Court of Australia as an “equitable chose in action“.

In order to compel the due administration of the trust beneficiaries have a legal right to have access to the original Trust Deed and any instrument that purports to amend the original Trust Deed and the Trustee has a duty to provide access and in some cases provide a copy of all the Deeds of the Trust to a beneficiary who makes a written request for them.

A Trustee is also under a duty to advise beneficiaries of the existence of the trust and their rights under the trust.

The fraud committed against the members and beneficiaries of an occupational pension trust established in the 23 December 1913 can be summarised as:

  • The unlawful removal of natural person trustees from the office of trustee
  • The purported appointment of an out of jurisdiction corporate trustee
  • Failure to advise some beneficiaries of the existence of the trust (ie wives and widows)
  • Criminal concealment of the original Trust Deed and genuine Deeds of Variation
  • The execution of invalid purported amending instruments
  • The false representation of a fraudulent document as the “Trust Deed” of the fund
  • Failure to seek advice and directions from a Court of competent jurisdiction in order to protect the welfare of the members and beneficiaries
 

When the first purported corporate Trustee was replaced on the 3 April 2006 the incoming purported corporate Trustee failed to take proceedings against the previous Trustee for the fraudulent Breach of Trust committed by the former purported Trustee.

The original Trust Deed that established the trust was criminally concealed from the members and beneficiaries along the other genuine Deeds of Variation.

A fraudulent document signed by a well known white-collar criminal was misrepresented as the “Trust Deed” of the fund.

The original Trust Deed that established the trust is the most important legal document in any trust.

More information on the original Trust Deed made on 23 December 1913 can be found here

A consolidation Deed of Variation dated 6 May 1958, consolidated the original Trust Deed along with subsequent Deeds of Variation

More information on this document can be found here.

This document and the Elder Smith & Co Limited Provident Funds Act 1963 (SA) quickly confirms the document signed by the well known white-collar criminal, Ken Jarrett, to be void and ineffective

More information on the “Jarrett Deed” can be found here.

If the original Trust Deed did not provide a power to amend the terms of the trust, then the terms can only be amended by an a Court Order or by an Act of Parliament.

The original Trust Deed made on the 23 December 1913 did contain a Power of Amendment, which was amended by the Elder Smith & Co Limited Provident Funds Act 1963 (SA)

Power of Amendment

The central questions of this fraud are:

  • What trustees have been lawfully appointed to the office of trustee? and
  • What amending instruments comply with the provisions of the Power of Amendment?
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    This tab updated on 30 December 2015