Victorian Supreme Court

Re Care Super (No 2) [2021] VSC 854

Appeared for trustee of Clerical Administrative and Retail Employees superannuation scheme, instructed by Mills Oakley.

Successful application for judicial advice as to exercise of remuneration power.

EQUITY – Judicial advice – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02 – Trust Deed provided for trustee to be remunerated for the bona fide provision of services to the Fund on such basis as the trustee determines to be ‘fair and reasonable’ – Whether trustee justified in determining a fair and reasonable fee for services including by reference to a risk that penalties may be imposed under Commonwealth legislation for which the trustee cannot be indemnified under the Superannuation Industry (Supervision) Act 1993 (Cth) ss 56(2) and 57(2) – Whether the trustee satisfied the Court to a reasonable degree of satisfaction that the exercise or the proposed exercise of the power under the remuneration clause was not improper for the purpose of giving judicial advice – Whether the trustee satisfied the Court to a reasonable degree of satisfaction that the exercise or proposed exercise was consistent with the judicial advice sought – Advice provided.

Judgment:

Media coverage:

Re Care Super (No 1) [2021] VSC 805

Appeared for trustee of Clerical Administrative and Retail Employees superannuation scheme, instructed by Mills Oakley.

Successful application for judicial advice as to lost trust deed and ownership of trustee shares.

EQUITY – Judicial advice – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02 – Jurisdiction of court to provide advice – Factors relevant to discretion to provide advice – Degree of satisfaction required before the court should give advice – When court may provide advice even though advice affects persons not represented at hearing.

JUDICIAL ADVICE – Advice sought that consolidated deed the operative deed of the trust – Not all copies of amending deeds available – Degree of satisfaction required before the court should give advice – Presumption of regularity – Court satisfied to a reasonable degree of satisfaction on inferences and presumption of regularity – Advice provided.

JUDICIAL ADVICE – Advice sought that shares in plaintiff trustee held by directors of plaintiff personally and not on behalf of trust – Court satisfied to a reasonable degree of satisfaction that shares held personally – Advice provided.

JUDICIAL ADVICE – Whether trustee justified in determining a fee for services including by reference to a risk that penalties may be imposed under Commonwealth legislation for which the trustee cannot be indemnified under Superannuation Industry (Supervision) Act 1993 (Cth) ss 56(2) and 57(2) – Fee so determined not in contravention of the Superannuation Industry (Supervision) Act 1993 (Cth) – Whether plaintiff established that it intended to determine fee in accordance with judicial advice – Whether court would exercise discretion to give advice when the plaintiff did not establish that it intended to determine fee in accordance with judicial advice – Advice refused.

Judgment:

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