Invalid Amending Instruments

The original Trust Deed made on the 23 December 1913 provided a Power of Amendment to the Directors of the sponsoring employer subject to the conditions that a Deed be used as the amending instrument and that a majority of the trustee had to also give their consent to the proposed amendment in writing.

The terms of the trust were amended by the Elder Smith & Co Limited Provident Funds Act 1963 (SA) so the the Directors of any “successor company” would hold the Power of Amendment.

The Directors of a company are separate legal persons to the company itself which has its own legal personality {Refer to Salomon v Salomon (1897) AC 22 HL}.

Where trustees have been provided with a Power of Consent by the Trust Deed that established the trust, the trustees can only exercise the Power of Consent (and other powers) if they have been appointed to the office of trustee in accordance with the terms of the trust and any statutory provisions.

No purported amending instrument executed after 1977 has been executed by the Directors of the sponsoring employer, but have instead been executed by the wrong legal person – the company.

Further more after 20 December 1982 no purported amending instrument has been executed by lawfully appointed trustees.

In additional many of the purported amending instruments have not been properly duty stamped so they cannot be produced as evidence in a court.

The High Court of England and Wales ruled in Trustee Solutions v Dubery [2006] 36 P.L.R [2006] EWHC 1426 (Ch) at paragraph 20:

“……but once the requirements of a valid means of alteration of the rule has been determined as a matter of construction, either a document satisfies those requirements or it does not.”

More information on this case can be found here.

Copies of the invalid amending instruments can be downloaded from the following tabs:

Purported Resolution 20 Dec 1982

Purported Deed of Variation 26 Aug 1986

Purported Resolution 15 Dec 1989

Purported Resolution 3 Sep 1991

Purported Resolution 5 Aug 1993

Purported Resolution 26 Oct 1993

Purported Resolution 20 Jul 1994

Purported Resolution 1 Apr 1996

Purported Resolution 23 Dec 1996

Purported Resolution 14 Mar 1997

Purported Resolution 10 Jun 1998

Purported Resolution 18 Jun 1998

Purported Resolution 25 May 1999

Purported Resolution 27 Oct 1999

Purported Resolution 3 Oct 2000

Purported Resolution 5 Oct 2001

Purported Resolution 8 Oct 2001

Purported Resolution 20 May 2003

Purported Resolution 6 Nov 2003

Purported Resolution 19 Dec 2003

Purported Resolution 31 May 2005

Purported Resolution 8 Mar 2006

Purported Resolution 31 Mar 2006

Purported Resolution 5 Dec 2008

Purported Resolution 18 Mar 2009

Purported Resolution 3 Mar 2010


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This tab updated on 29 May 2015