Event and Time
Event Description
- An application was made by SCS Super Pty Ltd, the trustee of the Australia Catholic Superannuation and Retirement Fund, seeking judicial advice to amend the Trust Deed to include a trustee remuneration clause. This request arose from recent amendments to the Superannuation Industry (Supervision) Act 1993 affecting indemnification of trustees and directors.
Application and Claims
- Applicant: SCS Super Pty Ltd (the Trustee)
- Objective: To seek judicial advice under section 63 of the Trustee Act 1925 (NSW) to amend the Trust Deed to allow for the charging of trustee fees, in light of potential liabilities that could endanger its financial stability.
- Legal Basis: Changes in the regulatory framework effective from 1 January 2022 that prevented indemnification for statutory liabilities from fund assets.
Judicial Decisions
- The Court determined that the Trustee would be justified in amending the Trust Deed as proposed to include a clause permitting trustee remuneration.
Dispute Points and Legal Basis
Dispute Points
- Trustee Arguments:
- The amendment is necessary to raise funds to cover potential liabilities, maintaining its financial viability. - Existing provisions do not permit indemnification for certain liabilities.
- Regulatory Involvement:
- The Australian Prudential Regulation Authority (APRA) appeared as amicus curiae, providing insights into regulatory expectations and implications of the proposed amendment.
- Memorial Context:
- Historical reliance on indemnification and absence of personal remuneration raised concerns about the Trustee's sustainability and ability to conduct its duties amidst potential legal penalties.