The original Trust Deed

The occupational pension scheme was established by a “Trust Deed” executed on the 23 December 1913 in the State of South Australia.

This Trust Deed confirms that a valid trust was established with the authorised purpose of providing “pensions and benefits” to certain “male officer, their wives, widows and dependants”.

The original Trust Deed reserved a power to amend the terms of the trust and a power to terminate the scheme.

The Power of Amendment was and is exercisable by the natural person directors of the sponsoring employer, while the Power of Termination was and is jointly exercisable by the natural person directors and the trustees.

Note: The Elder Smith & Co Limited Provident Funds Act 1963 (SA) amended the terms of the trust so that the Directors of any successor company would hold the powers provided to the directors of the original sponsoring employer.

Another important document that formed part of the “governing rules” of the fund in 1913 was the Trustee Act 1893 (SA).

A copy of this enactment can be found here.

Section 11 of this enactment empowers the persons nominated for the purpose of appointing new trustees by the trust instrument to appoint a replacement trustee if a trustee “remains out of the said province for more than twelve months”.

Sections 63 and 99 of The Administration and Probate Act 1891 (SA) also applied to trustees.

Section 99 provided:

“….any trustee….may when in difficulty or doubt,apply to a Judge for advice and directions as to matters connected with the administration of any estate, or the construction of any will, deed, or document, and such application may be made either ex parte or upon summons served upon any of the parties interested.”

The Trustee Act 1907 (SA) amended the 1893 Act and provide at Section 3(1):

“A trustee who, for the time being, is or is about to be absent from South Australia may, if not expressly prohibited by the instrument creating the trust, with the consent of his co-trustee (if any), by power of attorney, under seal, delegate, for a term not exceeding twelve calendar months from the date of such power of attorney, to any person or persons residing in South Australia, all or any powers, authorities, and discretions vested in such trustee.”

The Trustee Act (Further Amendment Act) 1915 (SA) added a provision from Imperial Act, 59 and 60 Victoria, c.35, s.3 as follows:

“If it appears to the Supreme Court –

  • (a) that a trustee, is or may be, personally liable for any breach of trust (whether the tranaction alleged to be a breach of trust occurred before or after the passing of this Act) , but “
  • (b) that the trustee has acted honestly and reasonably and ought fairly to be excused from the breach of trust, and for omitting to obtain directions of the said Court in the matter in which he has committed such breach,
  • then the said Court may relieve the trustee, either wholly or partly, from personal liability for breach of trust.”

    The Trustee Act 1893 (SA) was amended by the Trustee Act 1936 (SA).

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    This tab updated on 2 February 2016