The original Trust Deed included a provision in Regulation 33 that the original Trust Deed and all Deeds of Variation had to be made available for inspection by members and beneficiaries of the fund. This was an additional safety measure in addition to the general law requirement.
Later statutory provisions including Section 84B of the Trustee Act 1936 (SA) and subsection 1017C(2) and subsection 1017C(5) of the Corporations Act 2001 made it an offence to wilfully conceal certain prescribed “Trust Documents” from persons who have a beneficial interest in a trust and in particular a regulated superannuation trust.
The occupational pension trust was administered lawfully from 1913 to 20 December 1982. However the lawfully appointed natural person Trustees resident in South Australia were unlawfully removed from office on the 20 December 1982 and replaced with a purported corporate Trustee resident in Victoria.
Trustees de son tort
Since 20 December 1982 there have been three corporate Trustees resident in Victoria who have intermeddled with the affairs of the occupational pension trust established on the 23 December 1913 in the State of South Australia.
The purported corporate Trustees are:
Elders Superannuation Limited
The original Trust Deed and all genuine Deeds of Variation were concealed from the Supreme Court of Victoria by the first corporate Trustee on the above list in proceedings initiated by a former member-elected Director of the first corporate Trustee on the above list.
The second purported corporate Trustee also concealed the original Trust Deed and all genuine Deeds of Variation and the former Fund Secretary misrepresented a fraudulent document signed by Ken Jarrett and dated 26 August 1986 at the purported “Trust Deed” of the Fund.
In a letter dated 21 August 2009 the previous Fund Secretary made a dishonest representation that the purported trustee was not in possession of any executed Deeds dated before 26 August 1986.
In an earlier letter dated 13 May 2008 the former Fund Secretary confirmed that it was the policy of the purported Trustee to disclose a single document and not the original founding Trust Deed plus all subsequent Deeds of Variation as stipulated in the original Trust Deed.
However it has later been confirmed that the purported corporate Trustee had possession of a transcript of the original Trust Deed and a copy of the executed consolidation Deed of Variation dated 6 May 1958 that repealed the provisions of the original Trust Deed, plus copies of other genuine Deeds of Variation executed before 1980.
In a letter to the Prudential Regulator – APRA dated 24 June 2010 the former CEO of the purported Trustee advised APRA that the trustee was in possession of the original Trust Deed and all subsequent Deeds of Variation and that members and beneficiaries were welcome to come an inspect these Deeds.
The letter was marked “STRICTLY CONFIDENTIAL” and members and beneficiaries were never invited to inspect the genuine Deeds of the occupational pension fund.
When a request was made to inspect certain trust documents this is the response received from the former Fund Secretary:
In the case of a pension fund, once a member has qualified for a pension benefit, the member remains a member of the fund until death. Membership does not terminate with the termination of a Contract of Employment.
The payment of a “peppercorn benefit” does not abrogate a Trustee’s duty to account to persons who have a beneficial interest in the trust. If this was the case then a trustee could commit the perfect crime!
The Superannuation Complaints Tribunal ruled that a complaint lodged with the Tribunal was outside the jurisdiction of the Tribunal due to the doctrine of the Separation of Powers and the statutory remit of the Tribunal, with reference to Section 14(6) of the Superannuation (Resolution of Complaints) Act 1993 which prevents the Tribunal dealing with complaints that relates to the management of the fund as a whole.
(6) The Tribunal cannot deal with a complaint under this section that relates to the management of a fund as a whole.
Now in a the letter dated 13 November 2009 the former Fund Secretary dishonestly represented that a member of the occupational pension fund was no longer a member and as a follow up in a letter dated 9 June 2011 the former Fund Secretary dishonestly represented that a member was no longer “a member or a beneficiary” of the fund.
So even though it is a criminal offence to wilfully conceal the Deeds of a superannuation trust from persons who have a beneficial interest in that trust, the former Fund Secretary knew that she would be protected by ASIC (it does not require much imagination to understand why).
PFS Nominees Pty Ltd
Evidence of the criminal concealment of deeds and other prescribed “trust documents” is currently being assembled.
This tab updated on 31 May 2015