The Fraudulent Power of Amendment

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The purported Deed of Variation dated 26 August 1986 purports to replace the genuine Power of Amendment {Regulation 50} provided by the original Trust Deed with another purported Power of Amendment referred to as Rule 1.13.1

Rule 1.13.1  

Where the “Principal Employer” means: “Elders IXL Limited or any company carrying on business in succession thereto in amalgamation therewith which agrees to assume the ¬†obligations of the Principal Employer under the Deed and Rules”

Where “Employer” means: “The Principal Employer or any participating Employer and in relation to an Employee or Member means the Employer for the time being of such Employee or Member

Deed” means: “the Deed dated 23 of December 1913 as amended from time to time under which the Fund was established”

Where “Fund” means: “the Elders IXL Superannuation Fund (formerly the Provident Fund) established under the Deed and sall include all accretions thereto and assets comprised therein”.

Employee” means: “a person in the employment of an Employer and who is:

(i) a Director of that Employer; or

(ii) classified by his Employer as a permanent employee;

and includes any person as aforesaid on Special leave.


This purported Power of Amendment purports to provide the Power of Amendment to “the Trustee“, subject to the consent of the Principal Employer (ie the legal person of the company) and the natural person Directors of the Principal Employer.

This purported Power of Amendment also purports to replace the requirement for a Deed as the amending instrument to only require a “Resolution“.

However the Power of Amendment provided by the original Trust Deed made on 23 December 1913 provided the Power of Amendment to the natural person Directors of “the company” subject to the consent in writing by a majority of the natural person trustees.

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

At [25.20] under Power of variation in the trust instrument, in Equity and Trusts in Australia (4th Edition) , GE Dal Pont and DRC Chalmers state:

‚ÄúThere are further general law restrictions on the scope of an even apparent unfettered power to vary, Firstly, a power to vary will not permit a variation removing a restriction of that power, secondly, its exercise cannot affect any vesting that has already taken place…..Thirdly, a power to vary a trust deed arguably does not extend to a variation that would alter the substratum of the trust {Lock v Westpac Banking Corp (1991) 25 NSWLR 593 at 602}

Therefore even if the purported Deed of Variation dated 26 August 1986 had complied with the requirements of the genuine Power of Amendment {Regulation 50}, the Power of Amendment could not be taken away from the Directors of the “successor company” and given to a purported corporate Trustee.

However the purported Deed of Variation dated 26 August 1986 did not comply with the conditions imposed by Regulation 50 and thus is void ab initio.

This document was not executed by a majority of the Directors of Elders IXL Limited and no consent was given by lawfully appointed natural person trustees who have been unlawfully removed from office on 20 December 1982 and replaced by a Trustee de son tort {Elders Superannuation Limited}.

The genuine Power of Amendment {Regulation 50} has not been replaced by another Power of Amendment.

  Parties to the 1986 Deed  

It should be noted that the “Jarrett Deed” itself recites no Power of Amendment but relies on the purported Rule 1.13.1 attached to the purported Deed.

However, even if is was possible to materially alter a Power of Amendment a Deed of Variation would have needed to have been executed before the “Jarrett Deed” to repeal Regulation 50 and to add the new purported Power of Amendment, Rule 1.13.1, however such a Deed of Variation does not exist.

The outline of such a Deed of Variation is shown as follows:

Missing Deeds of Variation


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