Queensland Supreme Court

Mercy Super v Attorney-General for the State of Queensland & Attorney-General for the State of Victoria [2022] QSC 221

Appeared for the Mercy Super Trustee, instructed by Ashurst.

Successful application for declaratory relief and judicial advice.

STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – APPROPRIATE FORM OF RELIEF – DISCRETION OF COURT – where the applicants are both trustees for registrable superannuation entities, Mercy Super and the HESTA Superannuation Fund – where the applicants propose to effect a successor fund transfer of the members of Mercy Super Fund and their assets to the HESTA Superannuation Fund – where the proposed successor fund transfer involves the transfer of Mercy Super members, their benefits and matching assets to HESTA – where the transferred assets are not impressed with the first trust, but rather a new trust defined and constituted by the terms of the successor fund transfer deed and the governing rules of the successor fund – where neither trustee relies on a power of appointment in the transaction documents – where s. 442F of the Criminal Code (Qld) and s. 180 of the Crimes Act 1958 (Vic) prohibit secret commissions to trustees in return for substituted appointment – where the applicants seek a declaration that the proposed successor fund transfer is not a substituted appointment – where the applicants argue that the proposed successor fund transfer does not involve the replacement or substitution of a trustee – where the parties and APRA did not submit that the Court lacked jurisdiction to make the declaration sought – whether a declaration should be made that the proposed successor fund transfer is not a substituted appointment for the purposes of s. 442F of the Criminal Code (Qld) and s. 180 of the Crimes Act 1958 (Vic)

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – where the applicants alternatively seek assent or directions of the Court in respect of the proposed successor funds transfer – whether the Court should direct that the applicants are justified in effecting the proposed successor funds transfer

Judgment:

Media coverage:

Re QSuper Board [2021] QSC 276

Appeared for the statutory trustee of QSuper, the Queensland Public Sector Superannuation Scheme, instructed by King & Wood Mallesons.

Successful application for judicial advice.

SUPERANNUATION – PUBLIC SERVICE FUNDS – where the applicant board is a body corporate board created by the Superannuation (State Public Sector) Act 1990 (Qld) – where the board administered a scheme established by a deed for the provision of superannuation benefits from a fund – where the board acted as the trustee for the fund – where the individual members of the board are themselves trustees by the same Act – where the deed can be amended by the board – where the board owed covenants to act in the best financial interests of its beneficiaries and prioritise those beneficiaries’ interests over others in the event of a conflict – where, due to amendments to relevant legislation, the breach of trustee covenants attracted increased civil penalties under the Superannuation Industry (Supervision) Act 1993 (Cth) – where the same reforms prohibited the trustees from obtaining an indemnity or exemption from such liability from the trust fund – where the applicant proposed to amend the deed to allow it to remunerate itself from the trust fund to create a contingency fund that could be used to pay fines, penalties and similar liabilities arising from the new legislation – whether the board is justified in consenting to the proposed amendment

SUPERANNUATION – PUBLIC SERVICE FUNDS – where s 96(2) of the Trusts Act 1973 (Qld) refers to “all persons interested in the application or such of them as the court thinks expedient” – where the fund has over 600,000 members – where the applicant notified each of the member associations that nominated board members about the application – where notifying all members of the fund would cost around $275,000.00 – whether wider notification of members is required.

EVIDENCE – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – where the applicant relied upon legal advice, including the opinions of counsel, in the judicial advice application – where the applicant relied on commercially sensitive information in the judicial advice application – whether documents should be sealed on the court file or otherwise subject to redactions

Judgment:

Media coverage:

Contact Clerk (Sarah Tiffen): Email: clerk@5wentworth.com Phone: +61 2 8066 6111 Urgent Assistance: +61 416 697 853