L F Bell v Pfeffer[2009] QSC 209

SUPREME COURT OF QUEENSLAND

1. Desmond Christopher Bell was injured in a motor vehicle accident on 27 February 2004 and sustained serious injuries, including head injuries. His claim for damages for personal injury was settled and the terms of the compromise sanctioned by this court on 30 November 2007.

2. Under the compromise, $3,509,743.13 was paid by the second defendant to Perpetual Trustees Queensland Limited (“the Administrator”) after deduction and payment of statutory refunds and various other amounts set out in the order.

3. The order sanctioning the compromise included an order that the second defendant pay to the Administrator by way of further damages, damages for administration fees and fund management fees of the primary settlement sum.

4. The present dispute concerns the calculation of those fees.

The issues

5. Two questions arise for determination. The first question is whether in calculating future management and investment fees, the correct starting point is the amount actually received by the Administrator which was $3,509,743.13 on the basis of a straight line amortisation at 5% over a life expectancy of 62 years.

6. The argument for taking the original sum as the starting point is that the exercise is, in many respects, artificial and governed by the dictates of the law. In adopting a straight line amortisation of 5%, it is assumed that there will be periods when the returns are higher and periods when the returns are lower. That 5% represents a notional average. To take a lower starting point because returns have been lower since the fund was created disadvantages the plaintiff and ignores the likelihood that periods of low return will be offset by periods of high return. Conversely, had the first two years of the fund represented a period of high return, the defendant would be disadvantaged when compared with a calculation made at the time the order was made.

7. The alternative is to take the actual fund balance as at 17 June 2009 of $2,756,422.96 and apply a straight line amortisation of 5% over a life expectancy of 60 years. The competing arguments focus upon whether or not known events should be taken into account since the original order was made, rather than applying the necessary assumptions to the original sum.

8. The second question concerns the charging of fees described as management expense ratio fees (“MERs”). These are fees charged by funds in which Mr Bell’s money is ultimately invested and are calculated at .585% of the amount under management.

The first issue

9. In my view, the proper starting point for any calculation is the original amount received by the Administrator. This is then subjected to straight line amortisation at 5% over 62 years being the life expectancy of the plaintiff.

10. In Todorovic v Waller,^[1]Gibbs CJ said:^[2]

“We consider that in future the courts in Australia, in States where the question is not governed by statute, should, in assessing damages, arrive at the present value of a future loss by discounting at a fixed rate which will be applied in all cases and which will in itself reflect the effect of notional tax on notional income from the invested fund. To take this course may seem to involve some sacrifice of accuracy in the interests of predictability, but the whole process involves so much speculation that it is impossible to pretend to accuracy. In fixing the discount rate, the fact that for so long the rates applied by the courts in Australia have been at a level of 5 per cent and above should not be disregarded.”

11. To the same effect, Brennan J said:^[3]

“When a stream of future lost net earnings is calculated on the net earnings current at the time of the assessment … adjusted, if need be, to reflect savings in expenditure which would have been incurred in earning that income …, the appropriate discount rate (if any) is the rate which, applied to that undiscounted stream, results in a sum which the plaintiff could invest and draw upon from time to time to put himself in the same financial position as he would have been in if his earning capacity had not been tortiously impaired or destroyed.

It is permissible to have regard to past experience to guide a judgment as to what is a fair discount rate to select, though the past does not furnish a prediction of what the future is likely to hold.”

12. In referring to the past, Brennan J was not, in my view, indicating that if part of the calculation of damage was to be done at a later stage, the original intention of the judgment to provide a regular income at a fixed discount rate would not apply.

13. Consistently with the approach of the High Court in Todorovic, this court is required to assume at the time of judgment that while the rate of return on the invested sum might vary above or below 5% over a period of time, and particularly over a long period of time, the average real return would be of the order of 5% net.

14. The difference between taking as a starting point the amount actually received by the Administrator and the balance as at 17 June 2009 can be illustrated by reference to appendix 11 to the report prepared by Ms Bossert. Taking $2,756,423 as a starting point, a straight line amortisation at 5% results in a regular income of $142,065 per annum over the period. Adopting a starting point of $3,509,743.13 results in a drawdown of the order of $178,000 per annum.

15. There is, in my view, no magic in the date 17 June 2009. Market conditions may well have improved since that date with the result that the figure might now be higher. This illustrates that taking a particular point in time other than the date of judgment inevitably distorts the legitimacy of the notional calculation the court is required to make.

16. I am satisfied, therefore, that the correct starting point is the date of the order of McMeekin J and the correct starting amount is $3,509,743.13.

The second issue

17. The question of the fees is more complicated. In determining what may be claimed by way of commission and fees, reference must be made to s 41 of the Trustee Companies Act 1968 (Qld) which relevantly provides:

“41 Commission chargeable by a trustee company

(1)In respect of every estate which is, after the commencement of this Act, committed to the administration or management of a trustee company as executor, administrator, trustee, receiver, committee, guardian, liquidator or official liquidator or in any other capacity, the trustee company shall be entitled to receive, in addition to all moneys properly expended by the trustee company and chargeable against the estate, a commission at a rate to be fixed from time to time by the board of directors of the trustee company but not in any case exceeding, after discounting for any GST payable on any supply the commission relates to—

(a) $5 for every $100 of the capital value of the estate; and

(b) $6 for every $100 of the income received by the trustee company on account of the estate.

(2)The commission in respect of the capital value of the estate is payable out of moneys, whether capital or income, received by the trustee company and the commission in respect of the income received on account of the estate is payable out of that income.

(3)Subject to this Act—

(a) the commission shall be accepted by the trustee company in full satisfaction of any claim to trustee, receiver, committee, guardian, liquidator, official liquidator or in any other capacity; and

(b) no other charges beyond such commission and moneys so expended by the trustee company shall be made or allowed.

(4) Where the Court or a Judge is of opinion that the rate of commission charged in respect of any estate is excessive, the Court or Judge may, on the application of any person interested in the estate, review the rate of commission and may, on such review, reduce the rate of commission.

(5)…

(5A)If the administration or management of an estate was committed to a trustee company on or after 1 July 2000, the commission charged by the trustee company against the estate must not exceed the amount of the published scale of charges of the trustee company when the administration or management of the estate was committed to the trustee company.”

18. Whether and at what point the administration fees charged by the Administrator would exceed 5% of capital and 6% of income, being the maximum statutory amount, depends upon what amounts are included in those fees.

19. The relevant principle was expressed by the High Court in Willett v Futcher^[4] as follows:

“In a case, like the present, where a plaintiff must have an administrator appointed to manage his or her financial affairs because the plaintiff's incapacity to deal with those matters was caused by the defendant's negligence, the plaintiff is awarded a lump sum of damages which is to compensate the plaintiff for losses past, present and future. In a case, again like the present, where the plaintiff will never be able to manage his or her affairs and will never be able to work, the damages awarded will often include a significant allowance for future economic loss. The plaintiff can make no decision about the fund. An administrator must be appointed. The administrator must invest that fund and act with reasonable diligence. It follows that the administrator will incur expenses in performing those tasks. The incurring of the expenses is a direct result of the defendant's negligence. The damages to be awarded are to be calculated as the amount that will place the plaintiff, so far as possible, in the position he or she would have been in had the tort not been committed. That requires comparison with the position the plaintiff would have been in without the award of a lump sum for damages. It does not, as the distinction adopted by White J supposes, require or permit comparison with the position that the plaintiff would have been in had the disabling injuries not been sustained but the plaintiff nonetheless had a lump sum to invest. That comparison is irrelevant and inapt. In the ordinary course a person who is not injured will not have to husband a large sum of money over a long period of time in such a way as to ensure an even income stream but the complete exhaustion of the fund at the end of the period.”

20. The passage makes clear that the plaintiff is entitled to all the direct costs associated with holding and deriving an income stream from the fund created by the award of damages.

21. In this particular case, the total sum actually received by the Administrator was deposed to by Mr Fraser as being $3,509,743.13. Of this, $3,350,000 was invested in Perpetual Select Superannuation Fund (“the Select Fund”) on 19 March 2008.

22. For their calculations, the parties use a starting figure of $3,486,930. It is not clear to me why this figure is different to the figure deposed to by Mr Fraser as having been received by the administrator. Nonetheless, since that is the figure the parties have used I will use it for the purposes of calculation. It makes no material difference to the outcome.

23. The selection of a superannuation fund for the investment provided taxation advantages for the plaintiff who is unlikely ever to return to work.

24. The Select Fund is governed by the terms of a Public Disclosure Statement (“PDS”) which was admitted into evidence.

25. The PDS discloses that the Select Fund is operated by Perpetual Superannuation Limited. Although a company within the Perpetual Trustee Group, Perpetual Superannuation Limited is not the administrator.

26. Moneys invested in the Select Fund are placed with various fund managers, some within the Perpetual Trustee Group and some external in order to spread the inherent risk of investment. Those fund managers in turn charge fees. At p 24 of the PDS, the document deals with fees charged by the underlying fund managers. It does so as follows:

“The specialist investment managers are entitled to be paid fees. There are different ways that specialist investment managers are accessed, different methods of charging fees and different types of fees that may be charged.”

27. A table then sets out how different fees are charged for different types of investments. In relation to a type of investment described as “Investment in a pooled trust managed by the specialist investment manager” the manner of charging fees is identified as follows:

“The underlying pooled trust charges a fee, which is reflected in the unit price of the underlying pooled trust.”

“The super plan does not pay the underlying pooled trusts a separate fee.” 

“Fees of the underlying pooled trust will be incorporated in the investment options unit price.”

28. The second form of investment is described in the table as “a mandate arrangement between us and the specialist investment manager”. In relation to that second type of investment, the method of charging fees is as follows:

“The specialist investment manager directly charges the trust a fee.  This fee is treated as an expense of the relevant investment option. 

These will be accrued in the unit price of the investment option, and normally paid to the specialist investment manager quarterly in arrears.”

29. It is not possible from the evidence to determine how much of the specialised specialists investment manager’s fees are deducted before remittance to the Select Fund and how much are paid by the Select Fund in arrears. The total fees charged by the Select Fund, however, which represent the total of the MER’s is 0.585% of the funds invested.

30. Because the fees charged by the underlying fund managers in the first type of investment are taken out before returns to the Select Fund are declared, the 0.585% fee must represent the amounts which the Select Fund must pay to the underlying fund managers in relation to the second type of investment.

31. In any event, it seems to me to make no difference in principle whether the MER fee covers both forms of investment or only one. It also seems to me to be obvious that a fixed 0.585% is only an estimate of fees charged by underlying managers whose identity and share of the investment pool changes. For this additional reason it seems to me that the MER fee is best treated as a fee charged by the Select Fund on account of its outlays.

32. In addition to the underlying MER’s, Select charges its own fees on the basis of the amount invested in accordance with the following table:

33. The administrator itself has a schedule of fees applicable to moneys being administered. That schedule appears in the following table:

34. Despite its published schedule of fees, the administrator in fact charges the plaintiff an amount which is slightly in excess of the minimum fee per annum of $5,610.00. This reflects the fact that the administrator has contracted out to the Select Fund the investment of most of the funds which it administers. The total fees collected by the Select Fund, both for its own remuneration and on account of the MER’s, and the nominal administration fee collectively total less than the schedule fee chargeable by the administrator where it manages the investment itself.

35. In my opinion, fees charged by the Select Fund are not part of the commission charged by the administrator. To do so is to ignore the reality of separate corporate identity.

36. For the purposes of s 41 of the Trustee Companies Act, therefore, the only amount in fact being charged by way of commission by the administrator is the annual fee of approximately $5,700. Such an amount will never exceed the maximum permitted by s 41 of the Trustee Companies Act. 

37. No argument was advanced against allowing the Select Fund fees, the second defendant conceding that payment of those fees resulted in reduced fees by the Administrator.

38. In relation the MER’s, Senior Counsel for the second defendant submitted that no allowance should be made because the amounts do not represent moneys properly expended by the Administrator and chargeable against the estate. Rather, it is submitted that those amounts are reflected in the net rate of return on the investment in the Select Fund which is calculated after payment of the MER’s.

39. In paragraph 5.8.6 of her report, Ms Bossert expressed the argument as follows:

“…as the Courts compensate Plaintiffs on the basis that they will obtain a 5% after tax real rate of return, I am of the opinion that it should be assumed that the Investment Management Fees are also effectively built into the statutory five percent discount rate.  That is, consistent with the principles established in Todorovic v Waller (1981) 150 CLR 402 it should be assumed that the Plaintiffs will obtain a 5% after investment management fees and after tax, real rate of return on any lump sum compensation received.  Accordingly, I am of the opinion that the investment management fees should be excluded from the compensable fund management fees.”

40. I am unable to accept the argument. The PDS makes it plain that fees are charged both by the Select Fund and by those to whom the Select Fund entrusts the actual investment of the fund. Those fees are capable of precise calculation being based upon fixed percentages of the amount under investment. The fixed percentages of the invested sum charged for management fees bears no relationship to the returns paid in any given accounting period. By this I mean that the rate at which such fees are charged bears no relationship to the investment outcome. The same fees are paid whether the underlying funds make a profit or a loss. Thus, in my view, whether they are deducted by the underlying fund manager before payment of a net amount or paid in arrears by the Select Fund, they represent a direct cost of earning an investment return. In either case, where the actual investment of the fund is contracted out by the administrator to the Select Fund, these amounts should be treated as moneys expended by the Administrator on behalf of the plaintiff and chargeable against the estate since the estate ultimately bears that cost. The total of both the Select Fund fees and the MER’s are a known fixed cost at the time the money is placed with the Select Fund. I am thus satisfied that both the amounts charged by the Select Fund for its own use and the amounts which it pays to its underlying investment managers can properly be claimed by the Administrator as expenses in addition to the commission payable under s 41 of the Act. This seems to me to represent the real cost difference between an injured plaintiff with a lump sum to provide a regular fixed income over a defined term and another person receiving a periodic income with no lump sum to invest.

41. As a result of this conclusion, provided the form of investment remains constant, the fees charged by the Administrator will not exceed the s 41 cap.

42. Having arrived at that conclusion there is no real disagreement concerning the calculation. Accordingly, I propose to adopt the calculation made by Mr Fraser in exhibit CLF1 to his affidavit. I therefore fix the amount of administration and management fees in the sum of $752,969.

43. In arriving at this conclusion, I am aware that the Commonwealth has released an exposure draft of proposed amendments to the Corporations Act 2000 to bring trustee companies within the ambit of that legislation. If the present draft is enacted it will remove the cap imposed by s 41 of the Trustee Companies Act and allow the charging of fees limited only by the court’s overriding power to strike down fees considered to be excessive.