Terms of the Trust

Superannuation funds are generally based on the legal concept of a “trust“.

In Cowan v Scargill 1, Megarry V-C concluded that he could find:

“No reason for holding that different principles apply to pension fund trusts from those which apply to other trusts .”

[1985] 1 Ch 270 at 290. In Australia, see Fouche v The Superannuation Fund Board [1952] HCA 1; [1952] 88 CLR 609; Locke v Westpac (1991) 25 NSWLR 593. See also Gummow J’s obiter muse on whether construction of a superannuation trust deed required any ‘special’ approach, such as that proposed in some UK cases; Caboche v Ramsay [1993] FCA 611; (1993) 119 ALR 215, 233. The implication of the comment, though it is admittedly ambiguous, is that no special approach is required.

A trustee is under a legal duty to obey the terms of the trust which in the case of superannuation trusts are also called the “Regulations of the Fund” or the “governing rules“.

The terms of the trust are not to be found in a single document but in a set of documents that includes, but is not limited to:

  • the original Trust Deed that established the trust
  • any instrument that purports to vary the terms of the original Trust Deed
  • any Court Order related to the interpretation of the terms of the trust or the administration of the trust
  • any Act of Parliament specific to the trust
  • the relevant State Trustee legislation
  • relevant Commonwealth Legislation

The establishment of occupational pension  trust were witnessed by a deed dated 23 December 1913.

The original Trust Deed provided a conditional Power of Amendment that allowed for the terms of the trust to be varied from time to time.

The 1913 Trust Deed provided the Board of the Company with a conditional Power of Amendment, subject to the written assent of a majority of the Trustees.

The first Deed of Variation that amended the terms of the original Trust Deed was executed on the 7 October 1931.

A list of all the valid Deeds of Variation executed before the 26 August 1986 can be found here.

The purported Deed of Variation dated 26 August 1986 {the “Jarrett Deed”} is fraudulent and all subsequent Deeds of Variation and other purported amending instruments executed after the 26 August 1986 are also void and ineffective.

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

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