Obligations of Auditors

The “independent” Fund Auditor and the Fund Actuary are not lawyers, however as professional advisers to a superannuation trust they must have a basic knowledge of the laws of trusts.

Professional Advisers have a Duty of Care to the beneficiaries of the superannuation trust and should conduct some basic due diligence concerning the affairs of the trust (Equitable Life Assurance Society v Ernst and Young [2003] EWCA Civ 1114, [2003] 2 BCLC 603, at [108]).

Basic due diligence would include using reasonable endeavours to confirm that:

  • – the purported Trustee or Trustees have been lawfully appointed to the office of Trustee,
  • – the purported Trustee has possession of original counterparts of the founding Trust Deed and all subsequent Deeds of Variation (or other instruments purporting to vary the terms of the trust); and
  • – the founding Trust Deed includes a power to amend the terms of the trust.

    The next step would be a basic check that the party or parties who hold the power to amend the terms of the trust are in fact the party or parties who have amended the terms of the trust and that any conditions imposed by the “Power of Amendment” have been complied with. The nature of the benefits provided by the founding Trust Deed should be checked against the benefits currently being provided by the incumbent trustee.

    The type of benefits should be the same and the value of the benefit should either have remained the same or have increased. The objects if the founding Trust Deed should have remained the same. That is the class of persons entitled to a benefit should have remained the same even if the quantum of the benefit has remained the same or increased.

    It is not necessary for a Fund Auditor or a Fund Actuary to determine a “true construction” of the terms of the trust – that is something only a court can do. However and inspection of the documents represented as the terms of the trust (or the “governing rules”) should not raise any obvious “Red Flags”.

    If a “Red Flag” is discovered then this would require future investigation by a legal practitioner with a more detailed knowledge of the laws of trusts.

    As Lopes LJ stated in Re Kingston Cotton Mills (No 2) [1896] 2 Ch 279 at pp 288-9:

    “If there is anything calculated to excite suspicion he should probe it to the bottom; but in the absence of anything of that kind he is only bound to be reasonably cautious and careful.”

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    This tab updated on 8 June 2015