The Deeds of The Plum Superannuation Fund

The Trust Deed executed on 19 August 1998 that established the Plum Superannuation Fund can be found here:

plum-trust-deed-1998

The Trust Deed is an indenture executed between PFS Nominees Pty Ltd (ACN 082 026 480)(“Trustee”) and Plum Financial Services Ltd (ACN 081 812 731) (“Principal Company”)

An amending power is reserved in the Trust Deed in Clause 3.1(5) to provide a power to the trustee to:

“changes to Deed: change, amend, resettle, replace or merge the Deed with any other trust progressively or retrospectively:”

It is ambiguous as to whether the “Principal Company” is required to execute and amending Deed as an indenture to the original Trust Deed as a jointly held amending power with the Trustee.

No specific amending instrument is prescribed so the general law requirement that another Deed is required to amend a Deed applies.

Clause 4.1 (e) provides:

In the case of the cessation of participation of an Employer, and in the absence of written direction from the relevant Member, the Trustee may transfer the Member’s benefit to a Plan or segment of a Plan determined by the Trustee.

“Plan” is defined as “a benefit arrangement established pursuant to clause 3.1 under a Schedule to this Deed.

Note: There was no schedule incorporated into the founding Trust Deed before the Testimonium.

Clause 4.1(e) is similar to Clause 11.3 in Westpac Securities Administration Ltd v Cooper [2016] SASC 122 which requires that trustee to seek advice and directions from the Court as to whether the trustee had the power to transfer members to another fund.

The Regulations of the 1998 Trust Deed to not include any specific provision such as:

“The trustee is empowered to transfer the members and their benefits of the Fund without a member’s consent if it transfers those members, their benefits and assets to a Successor Fund.”

It might be expected that if such a transfer was to take place the approval of the “Principal Company” would be required.