› Applications to court on originating process – assent to arrangements for change of trustee of superannuation fund
Criminal law
› Secret commissions
› Valuable consideration to trustee for substituted appointment – s 442F Criminal Code (Qld) – s 535 Criminal Code (WA) – source of power to give assent
Courts and judges
› Jurisdiction
› Cross-vesting – Queensland Supreme Court giving assent under Western Australian Criminal Code – not a criminal matter
Superannuation
› Trustees
› Retirement and appointment of trustee of public offer fund – best interests of members – indemnities, guarantees and novations
Quick Take
1The clear weight of authority supports the conclusion that s 442F of the Criminal Code (Qld) and s 535 of the Criminal Code (WA) are themselves a source of power for a judge to give assent to valuable consideration passing to a trustee in connection with a substituted appointment. The Queensland Supreme Court may give assent under the WA provision by virtue of s 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) and s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), as the matter is not a criminal matter.
2An application for assent need not be made by the trustee. A party that would offer the valuable consideration, or that faces accessorial liability for the trustee's offence, has standing to apply, particularly where it is connected to the sponsor holding the power of appointment under the trust deed.
3Following Re BT Funds Management Ltd [2022] NSWSC 401, assent will normally be given where the appointment of the new trustee is in the best interests of beneficiaries, or where the proposed conduct does not induce the outgoing trustee to act otherwise than in their best interests. On the facts, industry-standard mutual indemnities, cost-sharing provisions, a parent guarantee of the incoming trustee and the assumption of employee leave liabilities satisfied that test.
