NAB Board has Genuine Deeds

{Published on 6 October 2014}

  PR 6 Oct 14  

The Chairman of the National Australia Bank (NAB), Mr Michael Chaney AO, and other Board Members have been recently provided with copies of genuine Deeds of an occupational pension fund established in South Australia on 23 December 1913 {Refer below}. This fund was once known as The Provident Fund. Under the provisions of the Trustee Act 1936 (SA), trustees of trusts established in South Australia must be resident in South Australia and can only be temporarily absent for 12 months unless on military service.

These Deeds have until recently been criminally concealed from the members and beneficiaries of this fund by a Victorian resident “Trustee” and were only obtained with the assistance of the Deputy Premier and Attorney-General of South Australia, the Hon John Rau MP, and the Attorney-General’s Department.

It is trite law that a trustee has to obey the founding Trust Deed as lawfully amended.

The name of The Provident Fund was changed to the Elders IXL Superannuation Fund in 1982.

ASIC has informed Senator John Williams that the Trust Estate of The Provident Fund has been transferred to the Trust Estate of a fund administered by a subsidiary company of the National Australian Bank. One of the Directors of the subsidiary company is Ms Peggy O’Neal who is the President of the Richmond Football Club. The Provident Funds Fraud Whistleblowers have also been advised by ASIC of this transfer. {Refer to ASIC References below}.

However no mention has been made as to what has happened to the Trust Estate of the Elders-GM Women’s Provident Fund. The Provident Fund was established in 1913 to pay “pensions and benefits” to certain male officers, their wives, widows and dependents and separate trusts were established to pay benefits to female officers, the most recent being the Elders-GM Women’s Provident Fund established in 1963.

The purported Trustee that arranged the transfer was resident in Victoria and not South Australia as required by the Trustee Act 1936 (SA). The transfer is illustrated in the following diagram.

SFT #1 NAB  

Copies of the genuine Deeds have been provided to the NAB Chairman, Mr Michael Chaney AO as well as to Director, Ms Jillian Segal AM, who is also a former Deputy Chairperson of ASIC. Copies have also been provided to Mr Daniel T Gilbert AM who established the legal firm Gilbert + Tobin.

Copies of these genuine Deeds have also been provided to the Australian Crime Commission and these have been posted on the website of the Australian Crime Commission. The Australian Crime Commission (ACC) replaced the former National Crime Authority (NCA)  in 2003.

These Deeds confirm that the retirement benefit provided to male officers who have completed at least 15 years of service with the sponsoring Employer is a pension for life if they retire over the age of 60 or are retrenched at an earlier age.

These Deeds also confirm that a widow of a qualifying male officer is entitled to a survivorship pension.

These pensions are not being paid. The Defined Benefits Division that provides for these pensions was not closed to new members until 1 December 1997 and there is a question in any event as to whether this purported closure was legally effective. There were over 1000 members of The Provident Fund Defined Benefits Division when it was purportedly closed to new members in 1997.

Over the coming days a number of other documents will be provided to the NAB Board that purport to eliminate the survivorship pensions for widows and reduce the value of the retirement benefit for male officers by up to 80% based on male life expectancy.

Some of these documents have been attested by persons who were the subject of a major investigation by the former National Crime Authority (NCA) known as Operation Albert. There persons are:

  • John Dorman Elliott,
  • Ken Jarrett, and
  • Ken Biggins

In addition to these persons of interest, a number of documents have also been attested by Geoffrey Cohen who was the Chairman of the purported Trustee resident in Victoria from 1990 to 2001. Mr Cohen was also the Chairman of HIH Insurance Limited when it collapsed in 2001 with losses of around $5.3 billion. Mr Cohen was subject to heavy criticism by Owen J in the HIH Royal Commission Report and Mr Cohen was banned by APRA and criminal charges were laid by ASIC.

Once the NAB Board receives these documents there is only one thing that the “NAB Trustee” that has Ms Peggy O’Neal as a Director can do and that is to seek a “true construction” of the terms of the trust from a Court of competent jurisdiction so as to protect the welfare of the members and beneficiaries of the fund.

A trustee is the quintessential “fiduciary” and a trustee whether owned by a big bank or not has to act honestly and in the best interests of the beneficiaries.

A Trustee has a right to seek advice and directions from a Court of competent jurisdiction as to how to interpret the governing rules of the fund.

Ford and Lee in The Law of Trusts state at [17.160]:

“Trustees may approach the court if they are in any doubt as to any course of action they are contemplating, whether it concerns the rights of beneficiaries, the performance of any duty or the exercise of any discretion; and sometimes it is their duty to do so. In Re Atkinson (dec’d) [1971] VR 612 at 615 Gillard J said:

Where an executor or trustee is in doubt as to the course of action it should adopt, it is always entitled to take the opinion of the court as to what it should do

By seeking advice and directions from the Court, Ms Peggy O’Neal and the other Directors of the “NAB Trustee” can be relieved of any personal liability for an action for a Breach of Trust pursuant to Section 56 of the Trustee Act 1936 (SA).

Future Press Releases will document whether the NAB Board will ensure that a “true construction” of the terms of The Provident Fund are obtained from a Court of competent jurisdiction.

The Court will need to determine if a consolidation Deed of Variation attested by two members of the Legislative Council of South Australia, including the leader in the Upper House of the Playford Government, and by a former Chairman of the publisher of The Advertiser in Adelaide is a valid Deed and thus confirms the pension entitlement.

The Court will also need to determine if other documents attested by persons who have already been the subject of major investigations in relation to other matters supersede the consolidation Deed of Variation mentioned above.

The NAB Board will no doubt be interested  in the outcome of this “true construction”?

It should be noted that Dr Ken Henry AC is now a Director of the National Australia Bank. Dr Henry had an instrumental role to play when he was the previous Secretary of the Treasury in the exposure of the Trio Capital Superannuation Fraud, which to date is Australia’s largest superannuation fraud known to the public.