Financial Services

ASIC v RM Capital & The SMSF Club [2024] FCA 151

Appeared for The SMSF Club, instructed by Hall & Wilcox.

Enforcement proceedings for pecuniary penalties & compliance orders in connection with alleged contraventions of s 963G Corporations Act 2001 (Cth) in relation to acceptance of conflicted remuneration by authorised representative.

Heard on July 2021 and March 2022. Further hearing to be listed in November 2024.

Judgment:

Media coverage:

Sweeney v AFCA & NULIS Nominees (Australia) Ltd [2022] FCA 1525

Appeared for the trustee of the MLC Super Fund, instructed by Minter Ellison.

Successful defence of purported appeal of decision by the Australian Financial Complaints Authority.

APPEAL – notice of objection to competency – where applicant filed a notice of appeal pursuant to s 1057 of the Corporations Act 2001 (Cth) – proceeding dismissed

Judgment:

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:

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:

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