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Perpetual Trustee Company Ltd v Shambrook[2024] QSC 105

Perpetual Trustee Company Ltd v Shambrook[2024] QSC 105

SUPREME COURT OF QUEENSLAND

CITATION:

Perpetual Trustee Company Limited v Shambrook [2024] QSC 105

PARTIES:

PERPETUAL TRUSTEE COMPANY LIMITED

ACN 000 001 007

(applicant)

v

AMANDA SHAMBROOK (AS LITIGATION GUARDIAN FOR TYSON DESMOND BURNS)

(respondent)

FILE NO:

9549 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application for declarations

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

30 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2024, further written submissions 10 and 13 May 2024

JUDGE:

Applegarth J

ORDER:

Counsel are to settle and bring in a form of order to reflect the orders proposed in these reasons.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – PUBLIC TRUSTEES AND TRUSTEE COMPANIES – where the Supreme Court of Queensland sanctioned a compromise of a damages claim and ordered that Perpetual Trustees Queensland Limited (PTQ) be appointed as trustee of the judgment sum – where ASIC made a Voluntary Transfer Determination pursuant to s 601WBA of the Corporations Act 2001 (Cth) transferring all assets and liabilities of PTQ to the applicant – whether the applicant has become the trustee of the assets that were previously held by PTQ

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – INVESTMENT OF TRUST FUNDS – whether a trustee had authority under s 21 of the Trusts Act 1973 (Qld) or under the Court’s order to pay trust money into superannuation

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – GENERAL MATTERS – CONFLICT OF INTEREST – whether PTQ was justified in paying part of a fund held in trust to Perpetual Trustee Superannuation Limited (PTSuper) in circumstances in which they share a parent company – whether the applicant was justified in retaining the superannuation investment with PTSuper – whether the interests of PTQ and the applicant conflicted with their duties as trustees

EQUITY – TRUSTS AND TRUSTEES – TERMINATION OF TRUST – whether the trust established by the court order terminates on the appointment by QCAT of a financial administrator – whether the applicant is justified in applying for the appointment of an administrator and in using money remaining in the damages award to make an application to QCAT for an order appointing a financial administrator

Corporations Act 2001 (Cth), ss 601, Part 5D.6

Superannuation Industry (Supervision) Act 1993 (Cth)

Trustees Act 1962 (WA), s 17

Trustee Act 1925 (NSW), s 14

Trustee Companies Act 1968 (Qld), ss 41, 68C

Trusts Act 1973 (Qld), ss 21, 76, 80, 95, 82, 82(2)(a)

Aberdeen Railway Co v Blaikie Brothers 1 Macq 461, [1843-60] All ER Rep 249, cited

Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1, cited

Benson v Cook (2001) 114 FCR 54, cited

Boardman v Phipps [1967] 2 AC 46, cited

Bray v Ford [1896] AC 41, cited

Breen v Williams (1996) 186 CLR 71, cited

Chan v Zacharia (1984) 154 CLR 178, cited

Clay v Clay (2001) 202 CLR 410, cited

Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373, cited

Cornell v Cornell [2015] WASC 43, cited

Fenwick v Naera [2016] 1 NZLR 354, cited

G v G (No 2) [2020] NSWSC 818, cited

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, cited

Jones v AMP Perpetual Trustee Company NZ Ltd [1994] 1 NZLR 690, considered

Noble v The Public Trustee of Queensland [1994] 1 Qd R 402, 405, cited

Parker v McKenna (1874) LR 10 Ch App 96, cited

Perpetual Trustee Company Limited v Cheyne (2011) 42 WAR 209, considered

Peso Silver Mines Ltd (NPL) v Cropper (1966) 58 DLR (2d) 1, cited

Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165, cited

Queensland Mines Ltd v Hudson (1978) 18 ALR 1, cited

Re CAC [2009] QGAAT 63, cited

Re Hoang Min Le [2012] WASC 31, cited

Re PWJ [2013] QCAT 368, cited

Re The Public Trustee of Queensland [2013] QSC 183, cited

Re Tracey [2016] QCA 194, cited

Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143, cited

Shimshon v MLC Nominees Pty Ltd & Anor (2021) 66 VR 277, cited

COUNSEL:

R T Whiteford for the applicant

N W Crofton for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the applicant

Cornford Scott Lawyers for the respondent

  1. [1]
    Tyson Burns was born on 23 October 2000.  I shall refer to him simply as “Tyson”.  He suffered cerebral palsy at birth due to medical negligence.  Tyson is unable to make decisions about financial and other matters.
  2. [2]
    On 25 August 2009 I sanctioned the compromise of a damages claim by Tyson’s mother, as his litigation guardian, in proceeding BS 8544/09 and ordered:
    1. the State of Queensland pay $4 million in damages, $650,000 in management fees and $125,000 in costs; and
    2. the damages and costs be paid to Perpetual Trustees Queensland Limited (“PTQ”) as trustee for Tyson.

PTQ received the money on 29 September 2009.

  1. [3]
    PTQ:
    1. used part of the money to construct a home for Tyson;
    2. applied most of the money to a superannuation fund which pays Tyson a pension;
    3. retained a modest amount (now about $250,000) in cash to meet day‑to‑day expenses.
  2. [4]
    Legislative reforms in 2013 made major changes to the regulation of trustee companies.  Trustee companies like PTQ had been regulated under state regimes.  The 2013 reforms required trustee companies to hold Financial Services Licences.  Commonwealth legislation provided for ASIC to make a determination that there be a transfer of estate assets and liabilities from a specified company (the transferring company) to another specified company (the receiving company).  The effect of a transfer was that the receiving company became the successor in law of the transferring company.  The prior appointment of the transferring company to a particular capacity (for example, as trustee, executor or administrator) in relation to the transferred estate assets and liabilities is taken to be an appointment or nomination of the receiving company to that capacity in relation to those assets and liabilities.[1]
  3. [5]
    The applicant, Perpetual Trustee Company Limited (“PTCo”), contends that by reason of the legislative changes in 2013 it has become the trustee of the assets that previously were held by PTQ.  It seeks an order clarifying that this is the position.
  4. [6]
    A second issue in respect of which PTCo seeks clarification is whether PTQ, when it was the trustee, had authority to pay the trust money into superannuation.  That issue arises because of authority that a payment into superannuation is not an “investment” within the meaning of certain State legislation.  The authority is Perpetual Trustee Company Limited v Cheyne,[2] which considered s 17 of the Trustees Act 1962 (WA), which is the equivalent of s 21 of the Trusts Act 1973 (Qld).
  5. [7]
    If I follow Cheyne and conclude that the payment by PTQ of the trust money into a superannuation fund was not authorised by s 21 of the Trusts Act 1973 (Qld), then an issue arises as to whether the terms of the order I made authorised the payment into superannuation because PTQ was authorised to apply the moneys for the “maintenance, benefit and support” of Tyson.  The decision of Edelman J in Cheyne supports this conclusion.
  6. [8]
    While it was still the trustee, PTQ paid most of the damages award into a superannuation fund of which a related entity, Perpetual Trustee Superannuation Limited (“PTSuper”), was the trustee. 
  7. [9]
    An issue arises as to whether PTQ was justified in paying the trust money to PTSuper in circumstances in which PTQ, PTCo and PTSuper share a common parent company – Perpetual Limited.  The issue is whether the indirect interests of PTQ and PTCo (in fees being earned by another company within the Perpetual Group) conflicted with their duties as trustees for Tyson. 
  8. [10]
    If I reach the conclusion that they were not justified in investing with PTSuper, then PTCo submits that:
    1. the Court should excuse, pursuant to s 76 of the Trusts Act 1973, PTQ and PTCo from any liability for that payment because:  (i) the decision to pay the money to PTSuper was carefully considered; (ii) there is no suggestion that PTQ or PTCo have acted other than honestly and reasonably; (iii) Tyson’s litigation guardian makes no complaint about the decision to use PTSuper; (iv) favourable fee arrangements were struck with PTSuper that reduced the fees that would have been payable to a third‑party superannuation fund; and (v) other financial benefits that have accrued to Tyson from the payment (including the increase of the capital invested by about $2.8 million); and/or
    2. the terms of the Court ordered damages trust ought to be amended under s 95 of the Trusts Act 1973 to allow the payment to PTSuper.
  9. [11]
    An unrelated issue arises from the fact that PTSuper delayed in investing money.  This delay caused loss to Tyson.  PTCo, at its expense, has obtained expert advice as to the amount required to compensate Tyson for the loss sustained due to this delay.  It seeks an order declaring that the appropriate amount has been paid.  The respondent, Tyson’s litigation guardian, agrees that it has. 
  10. [12]
    Two remaining issues arise in relation to a proposed application to QCAT for an order appointing PTCo as financial administrator for Tyson.  The first is whether, upon the proper construction of the order dated 25 August 2009, the trust established by that order terminates on the appointment by QCAT of the financial administrator.  The second is whether PTCo is justified in bringing an application for the appointment of an administrator and using money remaining in the damages award to make such an application. 

Did the Commonwealth legislation make PTCo the trustee of so much of the damages award as was transferred to it and remains under its control?

  1. [13]
    This question should be answered in the affirmative.
  2. [14]
    The Commonwealth legislation is in Part 5D.6 of the Corporations Act 2001.  Its provisions include the following:
  1. “601
    WAA Definitions
  1. (1)
    In this Part:
  1. …
  1. estate assets and liabilities, of a company, means assets (including assets in common funds) and liabilities of an estate, …. in relation to which the company was performing estate management functions, if the assets and liabilities were vested in or otherwise belonged to the company:
  1. (a)
    because of its performance of those functions; …
  1. 601
    WBA Transfer determinations
  1. (1)
    ASIC may, in writing, make a determination (a transfer determination) that there is to be a transfer of estate assets and liabilities from a specified company (the transferring company) to another specified company (the receiving company) …
  1. 601
    WBG Certificate of transfer
  1. (1)
    If:
  1. (a)
    ASIC has made a transfer determination … ASIC must, in writing, issue a certificate (a certificate of transfer) stating that the transfer is to take effect.
  1. (2)
    The certificate of transfer must:
  1. …
  1. (d)
    state when the certificate is to come into force …
  1. …
  1. (4)
    The certificate comes into force in accordance with the statement included in the certificate as required by paragraph (2)(d).
  1. 601
    WBI Time and effect of transfer
  1. (1)
    When a certificate of transfer comes into force, the receiving company becomes the successor in law of the transferring company in relation to estate assets and liabilities of the transferring company, to the extent of the transfer. In particular:
  1. (a)
    if the transfer is a total transfer – all the estate assets and liabilities of the transferring company, wherever those assets and liabilities are located, become assets and liabilities of the receiving company (in the same capacity as they were assets and liabilities of the transferring company) without any transfer, conveyance or assignment; and              
  1. (b)
    …
  1. (c)
    to the extent of the transfer, the duties, obligations, immunities, rights and privileges applying to the transferring company apply to the receiving company.
  1. 601
    WBJ Substitution of trustee company
  1. When a certificate of transfer comes into force, any appointment or nomination of the transferring company to a particular capacity (for example, as trustee, executor or administrator) in relation to the transferred estate assets and liabilities is taken to be an appointment or nomination of the receiving company to that capacity in relation to those assets and liabilities.
  1. 601
    WCE Construction of references to transferring company
  1. From when a certificate of transfer comes into force, in any instrument of any kind, a reference to the transferring company, in relation to assets or liabilities transferred under this Part, is taken to be a reference to the receiving company.” (emphasis added)
  1. [15]
    As to the reference to “instrument” in s 601WCE, a court order is “an instrument of any kind”. An “instrument” means: “a formal legal document whereby a right is created or confirmed or a fact recorded, a formal writing of any kind as an agreement, deed, charter or record, drawn up and executed in technical form”.[3]
  2. [16]
    On 15 January 2013, ASIC:
    1. made a Voluntary Transfer Determination pursuant to s 601WBA transferring all assets and liabilities of PTQ to PTCo; 
    2. issued a Certificate of Transfer pursuant to s 601WGB specifying that the Certificate came into force on 31 January 2013.
  3. [17]
    In the circumstances, PTCo submits that from 31 January 2013:
    1. pursuant to s 601WBI(1), PTCo became the successor in law to PTQ;
    2. pursuant to s 601WBI(1)(a), all of PTQ’s estate assets and liabilities became assets and liabilities of PTCo in the same capacity as they were held by PTQ (including those which it held on trust for Tyson);
    3. pursuant to s 601WBJ, the appointment by this Court’s order of PTQ as trustee of assets that were transferred that day to PTCo is taken to be an appointment of PTCo as trustee of those assets; and
    4. pursuant to s 601WCE, the reference in the order to PTQ is taken to be a reference to PTCo.
  4. [18]
    The respondent agrees that by operation of s 601WBI of the Corporations Act and s 68C of the Trustee Companies Act 1968 (Qld), PTCo became the “successor in law” to PTQ in respect of Tyson’s trust and assumed the capacity of trustee pursuant to s 601WBJ of the Corporations Act.
  5. [19]
    No good reason exists to not accept these submissions.  The legislative reform should be given a purposive interpretation.  It is not necessary for the legislation to use language such as “vests” for it to have the same effect as a vesting order.  Such an interpretation also avoids the necessity for a party to seek a vesting order under a provision such as s 82 of the Trusts Act 1973 (Qld) or in the Court’s inherent jurisdiction over trusts.
  6. [20]
    The language of the sections makes clear that the receiving company is taken to have been appointed or nominated to hold transferred estate assets in the capacity in which the transferring company held them, for example, as trustee, executor or administrator.

Was the payment of the trust money into superannuation authorised by s 21 of the Trusts Act 1973 (Qld)?

  1. [21]
    On 29 September 2009 PTQ received the damages award in the amount of $4,612,899.05.
  2. [22]
    On 23 November 2009 PTQ paid $4,250,000 to PTSuper to be invested on Tyson’s behalf in the Perpetual Select Pension Plan.  This was within the 90‑day period allowed under ss 292-95(1)(b) of the Income Tax Assessment Act 1997 for concessional contribution. 
  3. [23]
    Section 21 of the Trusts Act 1973 provides that a trustee may, unless expressly forbidden by the trust instrument, invest trust funds in any form of “investment”.  The decision in Cheyne is authority for the proposition that a payment into superannuation is not an “investment” by a trustee because the trustee does not receive anything in return.[4]  
  4. [24]
    In that matter, PTCo, as trustee of a court-ordered damages trust, sought judicial advice about whether it had power to invest most of the trust fund in superannuation.  Edelman J decided that the Western Australian equivalent of s 21 of the Trusts Act 1973 (s 17 of the Trustees Act 1962 (WA)) did not authorise payment of trust money into a superannuation fund.  His Honour said that the beneficiary on whose behalf the trustee paid the money received certain rights under the superannuation trust deed, but the trustee who paid the money received nothing in return for the payment.  Therefore, the payment was not an “investment” within the meaning of s 17 of the Trustees Act 1962 (WA).  Edelman J stated:
  1. “[52]
    … The usual meaning of investment in this context is to ‘[e]xpend (money, effort) in something from which a return or profit is expected’: New Shorter Oxford English Dictionary, p. 1410, definition 6.  However, the transaction which Perpetual Trustee wishes to make is one where Perpetual Trustee will not receive anything in return …
  1. [54]
    … there is nothing in s 17, or pt III which contemplates extending the meaning of ‘investment’ beyond the boundaries of cases involving exchange, or purchase…
  1. [55]
    … The assumption underlying this provision is that something will be received by the trustee in exchange for the disposition of trust funds…
  1. [56]
    For these reasons, I do not consider that the transaction contemplated by Perpetual Trustee is an investment within the meaning of s. 17 of the Trustees Act.  This is because Perpetual Trustee will not receive anything in return.  This means that s. 17 does not give Perpetual Trustee a unilateral power to make the transfer to Perpetual Superannuation.”
  1. [25]
    Cheyne was followed by Beech J in Re Hoang Min Le[5] and by Jenkins J in Cornell v Cornell.[6]
  2. [26]
    The position of a trustee investing in superannuation is to be distinguished from a financial administrator who manages an incapacitated person’s assets as a substituted decision-maker.  Unlike a trustee, an administrator has no interest in the relevant assets.  In G v G (No 2),[7] Lindsay J did not doubt the correctness of Cheyne, but held its reasoning did not apply to financial administrators (called “protected estate managers” in NSW).  Lindsay J accepted the submission by the NSW Trustee and Guardian that:[8]

“A trustee holds identifiable property for a specific but limited purpose – as defined in the trust deed or the terms of the trust upon establishment.  A protected estates manager holds (unless limited by the Financial Management Order), the entirety of the person’s estate for a much wider purpose.

A protected estate manager stands in the shoes of the protected person and is the substitute decision-maker.  A protected estate manager does not hold property for the benefit of the protected person.  Rather, the protected estate manager controls the property which always remains in the name of the protected person …

The argument that underpins Cheyne – i.e. that an investment requires an exchange of money from which a return or profit is expected by the trust – simply does not fit in the context of a protected estate.  The “return” or “profit” is received by the person in whose name the investment is made by way of tax advantages and the like.  It is merely that the protected estate manager makes the decision (and executes the documents) which puts the investment into effect.

That s. 17 of the Trustees Act 1962 (WA) which is mirrored in s. 14 of the Trustee Act 1925 (NSW) does not allow a trustee to invest in superannuation is also not to the point.  A protected estate manager is not a trustee in the sense that there is a trust separate from the beneficiary …”

  1. [27]
    In short, the position of a protected estate manager or similar financial administrator is distinguishable because the manager in making investments does so on behalf of the adult, not as a trustee.[9]  Although a fiduciary, it is not a trustee but the holder of a unique office.
  2. [28]
    In an ex tempore decision in Re The Public Trustee of Queensland,[10] Fryberg J expressed a tentative view doubting the correctness of Cheyne, but did not refuse to follow that decision without giving a considered judgment.
  3. [29]
    There is no relevant difference in the relevant provisions of the Queensland and Western Australian trustee legislation.  Cheyne is a carefully-reasoned decision of an eminent judge.  I should follow it. 
  4. [30]
    Therefore, I conclude that payment by PTQ of the trust money into a superannuation fund was not authorised by s 21 of the Trusts Act 1973.

Was the payment authorised by the Court’s order?

  1. [31]
    Paragraph 4 of the order made on 25 August 2009 empowered PTQ to:

“… apply such monies for the maintenance benefit and support of the applicant.” (emphasis added)

  1. [32]
    It is in similar terms to the terms of the court-ordered damages trust in Cheyne that authorised PTCo to:

“… apply from time to time the whole or any part of the income from the investment monies with recourse if considered necessary to the capital thereof for the maintenance, welfare and advancement or otherwise for the benefit of the Plaintiff …” (emphasis added)

  1. [33]
    Edelman J held this authorised payment of trust money into superannuation, because that payment was:
  1. (a)
    an “application” of the trust money;[11]
  1. (b)
    “for the benefit” of Mr Cheyne due to:
  1. (i)
    the significant taxation advantages he received as a member of the superannuation scheme; and
  1. (ii)
    the trustee of that scheme (Perpetual Super) being subject to rigorous regulation and supervision under the Superannuation Industry (Supervision) Act 1993 and Regulations and the Retirement Savings Accounts Act 1997 and Regulations.[12]
  1. [34]
    The taxation advantages of superannuation are well known.  Courts routinely accept that payment of damages trust money into a superannuation is for the “benefit” of the beneficiary of the trust.[13]  QCAT considers that investment by a financial administrator of an incapacitated adult’s money in superannuation is desirable in many cases.[14]  In 2009, the predecessor tribunal to QCAT held that failure by a financial administrator properly to consider investing an adult’s money in superannuation breached its duty of care.[15]  
  2. [35]
    The position is essentially the same as that considered by Edelman J in Cheyne.  The payment by PTQ to PTSuper was an application of the moneys that were the subject of the order.  The payment was for the benefit of Tyson because it secured for him significant benefits flowing from the advantages of a superannuation-based pension, namely that he would receive a mainly tax-free pension for the rest of his life.
  3. [36]
    In the circumstances, I find that paragraph 4 of the order authorised PTQ to invest in a superannuation fund that would provide for Tyson’s long-term maintenance and support as a member of a superannuation scheme that was regulated and supervised under applicable superannuation laws.

Was PTQ justified in paying the trust money into a superannuation fund of which a related entity was the trustee?

  1. [37]
    PTQ prepared a Financial Management Plan (“FMP”) for Tyson in 2009 which recommended payment of $4,250,000 of the damages award into a superannuation vehicle “Perpetual Select Superannuation Plan” with PTSuper as the trustee:
    1. to “start an Account Based Pension” for Tyson to be invested in the “Cash Option” to the extent of 5%, the “Fixed Interest Option, 20%, Real Estate – 12.5%, “Australian Share Option”, 37.5% and the “International Share Option” the remaining 25%;
    2. to invest in three tranches “to minimise the market timing risk by entering investment markets over three periods at six months intervals”.
  2. [38]
    The FMP recommended the tax benefits offered by superannuation.  It advised, “We recommend Tyson build up his superannuation investments due to the tax concessions available to superannuation this will enable greater capital accumulation when compared to alternative investment structures outside superannuation”.
  3. [39]
    The respondent, who is Tyson’s litigation guardian, commissioned a report from Paul Green, Director – Forensic Services of Vincents in respect of the Superannuation and Compensation Issues which concluded that payment into a “superannuation environment” was “an appropriate vehicle for Tyson” including because of the more favourable tax treatment of income and gains:
    1. during the “accumulation phase” investment earnings are taxed at a maximum rate of 15%, and in the “pension phase” no tax is payable on those earnings;
    2. capital gains tax at lower rates than other structures with tax payable “often reduced by franking credits”;
    3. pensions or lump sums are tax-free for individuals over 60 years of age and pensions payable in circumstances of permanent incapacity (as in Tyson’s case) are eligible tax offsets reducing the rate of tax payable.
  4. [40]
    The Vincents Report notes in respect of the FMP that:
    1. investing in tranches – known as “Dollar Cost Averaging”, not only is “commonly used” but serves to reduce “the chance of the clients suffering a significant capital reduction early on in their investment life when moving funds from cash to more volatile investments (such as shares)” and appropriately manages this risk;
    2. the recommended asset allocations (referred to in the Report as a Growth risk profile) was appropriate for Tyson’s circumstances;
    3. the decision to “switch” in December 2011 from “sector investments” to Perpetual’s Growth Fund provided greater simplicity and a lower level “of hands-on work for Perpetual” and was appropriate and prudent.
  5. [41]
    PTCo makes the point that the fund into which Tyson’s money was paid by PTSuper (the Perpetual Select Growth Fund) consistently performs better than the median return on investments for comparable financial products.  From the $4.25 million paid into the fund in November 2009, the value of Tyson’s superannuation has increased to about $7.1 million as at June 2023.  The Vincents Report concludes that “the investment of Tyson’s funds into PTSuper was a prudent decision and conforms with the Prudent Person rule and the Trusts Act.”
  6. [42]
    PTCo has drawn my attention to a point of distinction between this case and Cheyne.  When the contribution to superannuation was made by PTQ, an administrator to manage Tyson’s rights as a member of the superannuation fund could not be appointed as Tyson was not an adult.  Because of the requirement to contribute the money to superannuation within 90 days of receipt, payment could not be delayed until an administrator was appointed.  This does not prevent the payment being for Tyson’s benefit.  His rights were sufficiently protected as a result of the regulatory supervision under the Superannuation Industry (Supervision) Act 1993 and other laws regulating superannuation.
  7. [43]
    In summary, the evidence supports the conclusion that both as intended and as matters transpired, the placement of $4,250,000 of the damages award into a superannuation environment was an appropriate investment vehicle for Tyson.
  8. [44]
    The present issue does not concern the general issue of whether placement of monies in superannuation and in the kind of superannuation that would grow due to tax concessions was for Tyson’s benefit and appropriate.  The present issue concerns the possibility of a conflict in circumstances in which the money was paid to PTSuper in circumstances in which PTQ, PTCo and PTSuper share a common parent company:  Perpetual Limited. 

The issue

  1. [45]
    The issue is whether PTQ and later PTCo were each in a situation where there was a conflict of duty and interest, namely their duties as trustee for Tyson and their interest.
  2. [46]
    The relevant inquiry is whether a “real sensible possibility of conflict” arose.  That test is derived from the influential speech of Lord Upjohn in Boardman v Phipps.[16]  Lord Upjohn observed that the rule against conflicts of duty and interest:

“… is perhaps stated most highly against trustees … in the celebrated speech of Lord Cranworth L.C. in Aberdeen Railway v. Blaikie, where he said:

‘And it is a rule of general application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect.’

The phrase ‘possibly may conflict’ requires consideration.  In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real and sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict.”

  1. [47]
    The test of “real sensible possibility of conflict” was adopted by the Privy Council in Queensland Mines Ltd v Hudson[17] and by numerous Australian authorities.

The submissions of PTCo and the respondent upon the hearing of the application

  1. [48]
    At the hearing before me, PTCo submitted that any conflict in the present case is more apparent than real.  It placed particular reliance upon Jones v AMP Perpetual Trustee Company NZ Ltd,[18] an authority to which I will return.
  2. [49]
    PTCo refers to the reason PTQ chose to invest with PTSuper (and PTCo has chosen to leave the investment with PTSuper) and the resulting advantages to Tyson that are set out in the affidavit material.  It submits:
    1. there are practical benefits: because PTSuper is a related entity, the same officers manage Tyson’s interests under the court-ordered damages trust and under the superannuation trust.  PTCo and PTSuper approach the investment of Tyson’s money relying on the same financial advice.  This enhances consistency of control over Tyson’s assets.  While Tyson was an infant, no one had the authority to manage his rights as a superannuation beneficiary.  In practice, though, PTSuper allowed PTQ and then PTCo to make such decisions on Tyson’s behalf.  A third-party superannuation trustee would have been justified in refusing to provide information about Tyson’s superannuation investment to PTQ/PTCo or to allow them to have any input into the management of Tyson’s superannuation investment;
    2. there are financial benefits:  PTQ/PTCo based their fees only on the funds remaining in the trust.  They did not and do not charge for supervision of or coordination with PTSuper, which they would do with a third‑party superannuation trustee.  The total of PTQ and PTCo’s fees since the commencement of the trust is $245,856.80, whereas under s 41 of the Trustee Companies Act 1968, they would have been entitled to charge $424,374.20 if their charges were based on all capital and income.  PTSuper did not charge an establishment fee on receipt of the money paid to it by PTQ, which a third-party superannuation trustee was or may have been entitled to do.  PTSuper charges for its services according to its advertised rates from time to time, but passes on to Tyson all fee rebates from the managers of the funds in which the superannuation monies are invested; 
    3. as noted, the Perpetual Select Pension Growth Fund has a good investment record, with Tyson’s initial investment of $4.25 million in 2009 increasing to about $7.1 million as at June 2023;
    4. there is no suggestion in the FMP that led to the investment with PTSuper, or otherwise in the evidence, that the decision to use PTSuper was motivated by any benefit that may result to the parent company; and
    5. once the money was invested in Perpetual Select Super, PTCo regularly reviewed Tyson’s position and determined that it was prudent to leave the money in that fund as the fees and CGT which would have been incurred in a change of funds are considerable.
  3. [50]
    PTCo also notes that:
    1. in Cheyne, Edelman J expressed no reservation about PTCo paying trust money to PTSuper;
    2. QCAT routinely has no difficulty with PTCo, as financial administrator, paying money to PTSuper on behalf of adults;[19]
    3. Tyson’s litigation guardian makes no complaint about the payment to PTSuper.
  4. [51]
    At the 28 March 2004 hearing of the application, the respondent also noted the examination of the “no conflict rule” in Jones.  The two matters that “saved” the defendant in that case were that AMP “was a pre-eminent life insurance company with a comparatively attractive investment record” and that it was found to have been not motivated, or even influenced, in its decision by the fact that AMP would benefit or profit by the receipt of fees.  The evidence of the present matter was submitted to align with the two factors that “saved” Perpetual in Jones.  First, PTSuper is an eminent, if not pre-eminent, superannuation fund with a “comparatively attractive investment record”.  Second, the evidence is that at least equivalent fees, and probably greater fees, would have been payable had Tyson’s funds been invested in an alternative superannuation fund. 
  5. [52]
    The respondent submitted that if Jones applied, then the court might make the orders sought in paragraph 4 of the originating application, namely that PTQ and PTCo were justified in paying a large part of the damages into superannuation with PTSuper.  The respondent submitted that even if there were a breach of the duty to avoid conflicts, no loss or damage was suffered by reason of the alleged breach and that an order should be made relieving PTQ and Perpetual from the breach.

Further submissions

  1. [53]
    After I reserved my decision I located an illuminating article by the Honourable J C Campbell KC titled, Obligations and Powers of Superannuation Trustees Concerning Situations of Actual or Possible Conflict.[20]  The article concerns superannuation trustees and the relationship between the pre-existing general law and statute law governing superannuation trusts, particularly the Superannuation Industry (Supervision) Act 1993 (Cth).  The article includes an insightful analysis of the “no‑conflicts duty” and criticizes the decision in Jones.
  2. [54]
    I invited further submissions from the parties concerning Jones.  Because of the potential implications of my decision for other cases involving a court-appointed trustee investing in a superannuation fund that is managed by a related entity, I considered that the regulator should be given an opportunity to make submissions.  At my request, ASIC was informed by the parties about the matter.  Its Litigation Counsel advised on 30 April 2024 that it did not wish to make any written or oral submissions in relation to PTQ’s and PTCo’s ability to invest in products of which PTSuper is the trustee.
  3. [55]
    The parties provided further written submissions which I will summarise after considering the relevant authorities.         

The “no-conflict” rule

  1. [56]
    A trustee is a fiduciary.  Equity imposes proscriptive duties on a fiduciary.  One is to not obtain any unauthorised benefit from the relationship.  Another is to not be in a position of conflict.[21]
  2. [57]
    The objectives of these proscriptions are:
    1. “to preclude the fiduciary from being swayed by considerations of personal interest”; and
    2. “to preclude the fiduciary from actually misusing his position for his personal advantage”.[22]
  3. [58]
    The development of the “no-conflict” rule in Australia is discussed in Campbell’s learned article.[23]
  4. [59]
    Exceptions to the “no-conflict” rule may exist by reason of the terms of a trust instrument, the fully informed consent of the beneficiary, or a court permitting a conflict.[24]
  5. [60]
    In the present context, the Court appoints a professional trustee that charges remuneration for managing the fund that is entrusted to it.  The court‑appointed trustee is expected to charge “management fees” for its services.  An estimate of future “management fees” are awarded as a form of damages against a defendant, or are part of a settlement that is sanctioned.  The Court order that creates the trust relationship authorises the application of the sum, or part of it, in superannuation if the trustee, exercising its powers and performing its duties, considers that this is in the best interests of the beneficiary.  In that context, it may be possible to characterize the manager of the superannuation fund in which trust moneys are placed as a third‑party service provider.  It also is possible to simply conceive of the superannuation fund as an “investment”[25] in which the superannuation fund manager charges fees for its services.  It is analogous to an investment in bricks and mortar in which an estate agent charges a fee to manage the property. 
  6. [61]
    The obligation of a fiduciary to not be in a position of conflict (the “no-conflict rule”) may be said to avoid a conflict:
    1. between the interests of the fiduciary and those of the beneficiary;
    2. between the fiduciary’s duty to the beneficiary and the duty the fiduciary owes to someone else;
    3. between the interests of the beneficiary and the duty the fiduciary owes to someone else; or
    4. between the duty of the fiduciary to the beneficiary and the interests of the fiduciary. 

The fourth situation may be analysed as involving the first type of conflict.[26]  

  1. [62]
    The interests of the fiduciary that are involved in a conflict between the interests of the fiduciary and those of the beneficiary may be the fiduciary’s interest in acquiring a benefit for itself, or it might be the fiduciary’s interest in having a benefit arise for a third party that it favours.  As Campbell writes, the interests of the fiduciary or the third party “might be pecuniary or non-pecuniary, direct or indirect”.[27]  A non‑pecuniary interest includes an interest by way of association, whether through kinship or business connection.[28]
  2. [63]
    In Pilmer, McHugh, Gummow, Hayne and Callinan JJ described the obligation of a fiduciary to avoid a conflict between its interests and the interests of the beneficiary as:[29]

“… an obligation, without informed consent, not to promote the personal interests of the fiduciary by making or pursuing a gain in circumstances in which there is ‘a conflict or a real or substantial possibility of a conflict’ between the personal interests of the fiduciary and those to whom the duty is owed.”

  1. [64]
    The extension of the rule beyond an actual conflict to a “possible conflict” is justified in order to avoid the fiduciary being swayed by its own interests or the interests of a third party that it favours.  Lord Herschell observed in Bray v Ford:[30]

“… human nature being what it is, there is a danger, in such circumstances, of the person holding the fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect.  It has, therefore, been deemed expedient to lay down this positive rule.”

  1. [65]
    As earlier noted in [46] the phrase “possibly may conflict” used by Lord Cranworth LC in Aberdeen Railway Co v Blaikie Brothers[31] was considered by Lord Upjohn in Boardman v Phipps.[32]  Lord Upjohn’s test of a “real sensible possibility of conflict” has been adopted.
  2. [66]
    Slightly different formulations may be found.  For example, in Pilmer the joint judgment referred to “a conflict or a real or substantial possibility of a conflict”[33] in the context of the obligation to not make or pursue a gain in such circumstances.  Sometimes the requirement for there to be a “real sensible possibility of conflict” is stated in formulating the obligation.  Sometimes the rule has been formulated in terms of a liability rule, with breach not occurring simply by being in a position of conflict, but by pursuing the gain or interest or receiving a benefit.[34]  On occasions it is said that there will be no breach of the “no-conflict rule” unless there is a conflict or a real sensible possibility of conflict.[35] 
  3. [67]
    In Fenwick v Naera[36] the Supreme Court of New Zealand, in discussing the “no‑conflict rule”, adopted what Lord Upjohn said in Boardman v Phipps.  It stated that there must be a “real sensible possibility” of a conflict and “not just a remote, speculative, or negligible risk”.
  1. [68]
    Deane J in Chan v Zacharia[37] formulated the principle in terms of “a significant possibility” of conflict between personal interest and fiduciary duty, the objective being “to preclude the fiduciary from being swayed by considerations of personal interest”.[38]
  2. [69]
    Some judges have warned against the inflexible application of a broad, general principle.  Deane J in Chan v Zacharia stated:[39]

“… one cannot but be conscious of the danger that the over‑enthusiastic and unnecessary statement of broad general principles of equity in terms of inflexibility may destroy the vigour which it is intended to promote in that it will exclude the ordinary interplay of the doctrines of equity and the adjustment of general principles to particular facts and changing circumstances and convert equity into an instrument of hardship and injustice in individual cases… There is no ‘better mode of undermining the sound doctrines of equity than to make unreasonable and inequitable applications of them’.”

  1. [70]
    Deane J also stated:[40]

“…. the liability to account for a personal benefit or gain obtained or received by use or by reason of fiduciary position, opportunity or knowledge, will not arise in circumstances where it would be unconscientious to assert it or in which, for example, there is no possible conflict between personal interest and fiduciary duty and it is plainly in the interests of the person to whom the fiduciary duty is owed that the fiduciary obtain for himself rights or benefits which he is absolutely precluded from seeking or obtaining for the person to whom the fiduciary duty is owed (cf Peso Silver Mines Ltd (NPL) v Cropper (1966) 58 DLR (2d) 1 at 8).”

  1. [71]
    The authors of Underhill and Hayton: Law of Trusts and Trustees[41] observe that the courts “have developed a pragmatic, commonsense approach to the scope of the conflict of interest rule by requiring a real sensible possibility of conflict before finding that a conflict of interest exists”.
  2. [72]
    Some academic consideration of the duty of loyalty and to act in the sole interest of the beneficiary has noted the ubiquity of conflicts in a variety of contexts, including non‑trust service providers, settlor-authorised conflicts in trusts, and trustee compensation.[42] 
  3. [73]
    In this matter, the fiduciary as applicant is required to satisfy the Court that placement of business with an associated entity did not create a real and sensible possibility of conflict which would impair its ability to serve the best interests of, and to prioritise the interests of, the beneficiary. 

Jones v AMP Perpetual Trustee Co NZ Ltd

  1. [74]
    The defendant (Perpetual) was the trustee of a superannuation scheme of which the plaintiffs were members.  Perpetual employed the plaintiffs.  The scheme included retirement, total and permanent disability, and death benefits under an arrangement whereby Perpetual took out an insurance policy with AMP and paid premiums, with AMP promising to fund the benefits payable under the trust deed.  Most of the trust assets, however, were invested in a fund managed by Perpetual’s parent company, AMP, in which other superannuation funds invested.
  2. [75]
    The fund in question that was established and managed by AMP invested in equities.  It was exposed to the share market crash in October 1987.  As a result, the performance of the superannuation scheme slumped.  The plaintiffs claimed that they had suffered a loss as members of the superannuation scheme because of the decline in the value of the shares held in the fund that was managed by AMP.
  3. [76]
    One part of the plaintiff’s argument was that Perpetual’s parent company, AMP, profited from the fees paid to it in relation to the insurance policies, and also fees in respect of the purchase and sale of shares and also a management fee.  This was alleged to amount to a breach of fiduciary duty by Perpetual in that its parent company profited personally from the investment.
  4. [77]
    Another part of the plaintiffs’ case was that Perpetual failed to consider alternative fund managers.  On that point, Thomas J acknowledged that Perpetual’s preference for its parent company was a matter that required “the closest scrutiny”.[43]  Thomas J concluded that it was “virtually inevitable” that AMP would be selected as the fund manager because, irrespective of what the officers of Perpetual and AMP said in evidence, commercial reality dictated that conclusion.  Thomas J added that it was difficult to criticize the choice of AMP as the company in which to invest since it was “a market leader with an established record as good as, if not superior to, any other life insurance company”.[44]  Thomas J returned to that topic in connection with the breach of fiduciary obligation argument. 
  5. [78]
    Thomas J rejected an argument by Perpetual that the principle that prohibits a trustee from making any profit by its management of a trust, or from putting itself in the position where personal interests conflict with the trustee’s duty, only applied if Perpetual itself was taking fees.  The judge concluded that “there may be occasions when the advantages obtained by a parent company as a result of a wholly-owned subsidiary company’s conduct as a trustee contravened the principle”.[45]  This was because an equitable concept is being invoked and one should “not be intransigent about lifting the corporate veil to ascertain the true position”.  In addition, a subsidiary, in some circumstances, might obtain an indirect benefit from placing business with its parent to the point that its obligation to give its undivided loyalty to the trust would be impaired.  Thomas J concluded “there is no absolute principle which would either exclude the general principle that a trustee cannot profit from its management of the trust or mean that it is invariably applied wherever a subsidiary acting as trustee benefits its parent company”.[46] 
  6. [79]
    What was pertinent was the fundamental principle to ensure that the trustee’s loyalty to serve the interests of the trust, or the beneficiaries of the trust, is “not distracted by a personal interest which conflicts with those interests”.[47]  Whether there had been a breach of this principle was said to be, to a large extent, a question of fact and degree.  The Court adopted the formula stated by Lord Upjohn in Boardman v Phipps[48] and adopted by Lord Scarman in Queensland Mines Ltd v Hudson,[49] that the question is whether “the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict”.
  7. [80]
    Thomas J concluded that Perpetual was not in breach of its fiduciary duty and that no conflict arose between the personal interests of Perpetual and the interests of the beneficiaries.  Perpetual was not required to make a choice between its duty and interest.  Having not accepted the evidence of representatives of Perpetual and AMP that Perpetual acted independently of its parent company, Thomas J did not doubt that Perpetual’s decisions “were influenced by its corporate relationship with AMP”.  It would have been unthinkable for it to have invested the superannuation fund with AMP’s main competitor. 
  8. [81]
    Two factors were said to have “saved” the company from a finding that this “latent influence” meant that Perpetual was in breach of its fiduciary duty.
  9. [82]
    The first, which had earlier been adverted to by Thomas J, was the fact that “AMP was a pre‑eminent life insurance company with a comparatively attractive investment record”.  Perpetual did not have to detach itself from AMP and question its relationship with that company.  According to Thomas J, it could “at one and the same time direct the business to its parent and yet serve the best interests of the trust”.
  10. [83]
    The second factor that saved Perpetual was a finding that it was not “motivated, or even influenced, in its decision by the thought that AMP would benefit or profit by the receipt of the fees” to which the plaintiffs pointed.  Once the decision had been made to invest the fund in a life insurance policy, the equivalent fees would be payable to any company which Perpetual selected to take the policy.  The essential point was that the placement of the business with its holding company did not create a conflict of the kind that impaired Perpetual’s ability to serve the best interest of the beneficiaries.[50]   

Criticisms of Jones

  1. [84]
    Campbell J observes that the type of loyalty to the corporate group that Thomas J recognized is an interest of a non-pecuniary kind that can fall within the no-conflict rule.[51]  In such a situation there was a realistic possibility of conflict between its interest in being a loyal member of the group and its duty to the beneficiaries.  The point of the no-conflict rule, as stated by Lord Herschell in Bray v Ford, was paraphrased by Campbell as extending to situations of possible conflict so as to “enable it to operate as a way of preventing any temptation or unconscious tendency for the trustee to do anything other than act in the interests of the beneficiaries”.[52]
  2. [85]
    I agree with Campbell that the two matters that “saved” Perpetual from being found to be in breach of the no-conflict rule are unpersuasive.  The fact that the superannuation fund is managed by a pre-eminent company with an impressive investment record does not avoid a potential conflict.  Apart from anything else, a pre‑eminent company with such a record may charge higher fees than a company with a similar, but not quite so good, investment record.  In any case, the strictness of the no-conflict rule tends to not take account of the fact that the dealing was as good or even better than could have been obtained from a competitor.
  3. [86]
    The second saving factor, namely the absence of a motivation to benefit its parent company by the receipt of fees, focuses upon the subjective state of mind of the fiduciary.  However, the existence of a real sensible possibility of conflict is a matter that is assessed objectively.  The aim of the fiduciary duty is to preclude fiduciaries from using their position for personal advantage or being swayed by considerations of personal interests.[53]  The law recognizes that there may be an unconscious tendency to favour a related entity which the trustee is familiar, human nature being what it is.  The relationship with another member of a corporate group carries the danger of the fiduciary being swayed by loyalty to the corporate group, rather than a duty to the beneficiary.
  4. [87]
    The respondent cites the observations of Ford and Lee in the different context of conflicts of duty and duty:[54]

“The rule is prophylactic in the sense that its purpose is to avoid situations where the proper performance of the fiduciary’s non‑fiduciary duties is placed in jeopardy. So a fiduciary duty may be infringed in cases where there is no moral turpitude, where no wrong is inflicted and where there is no consciousness of wrongdoing.”

  1. [88]
    Relevantly, absent the two “saving factors” that were relied upon by Thomas J, Perpetual would have been in breach of its fiduciary duty because of the “latent influence” that existed because of its corporate relationship with AMP. 
  2. [89]
    Jones supports “lifting the corporate veil”.  In that regard, the circumstances of this matter do not differ materially from those in Jones.  In this case, however, moneys were not placed in a superannuation fund that was operated by the parent company, Perpetual.  The superannuation fund is operated by PTSuper, a wholly-owned subsidiary of Perpetual.  The parent company benefits indirectly from the payment of fees to its subsidiary.  In Jones the parent company benefitted directly. 

Application of these principles   

  1. [90]
    Applying these principles, the issue is whether a reasonable person, looking at the relevant facts and circumstances, would conclude that there was a “real sensible possibility of a conflict”. 
  2. [91]
    Testing transactions after the event, to see whether the beneficiaries have in fact been disadvantaged, does not allow the rule its full scope of “prophylactic operation”.[55]  As stated in Aberdeen Railway Co v Blaikie Brothers,[56] the fact that the terms on which the trustee has dealt or attempted to deal “have been as good as could have been obtained from any other person – that may even at the time have been better” is not to the point.  The strictness of the no-conflict rule means that no question is allowed to be raised as to the fairness or unfairness of the contract.  Various Australian authorities cited by Campbell confirm the inflexibility of the rule under which the court is not entitled “to receive evidence, or suggestion, or argument as to whether the principal did or did not suffer any injury in fact by reason of the dealing of the agent”.[57]    
  3. [92]
    More generally, one should not be affected by the hindsight bias entailed by the substantial increase, over time, in the amount held on Tyson’s behalf in the Perpetual Select Pension Growth Fund.  As noted, the initial investment of $4.25 million in 2009 increased to about $7.1 million as at June 2023.  To some extent, this is probably a feature of the taxation and other advantages of investment in superannuation, the passage of time, and the general increase in equity markets over that period.
  4. [93]
    One would not judge the existence or absence of a “real sensible possibility of a conflict” by whether a fund grew quickly, moderately, or not at all.  For example, the fact that a fund grew very little or even declined in value during a lengthy economic recession would not determine the conflict issue.  The conflict issue is not determined by financial performance during bull and bear markets. 
  5. [94]
    This is not to diminish the role played by the applicant and PTSuper in preserving and increasing Tyson’s wealth by appropriate investments in superannuation.  It simply is to avoid deciding the issue by reference to whether, well after the original investment, the investment has proven to be a good one.  The trustee was always expected to apply the trust funds for the benefit of Tyson through prudent investments that would ensure capital growth.  The extensive affidavit evidence shows that this has occurred.
  6. [95]
    A decision having been made that it was appropriate to invest in superannuation, the trustee was required to decide about the particular fund in which to invest.  Speaking generally, a range of factors would enter into that decision-making process, including the standing of various funds, their past and anticipated performance, and their fees.  It would be not dissimilar to the decision that a person with capacity and acting on the basis of independent advice would need to make about investment in superannuation.  Considerations would include the need for security, growth, and return on investment, net of fees.  These issues, particularly fees, are the subject of public policy debates, television advertisements, and financial advice.  The net return will be a function of the performance of the fund and the fees that are charged to its members. 
  7. [96]
    A prudent person might countenance paying slightly higher fees to ensure a much better return on investment.  Alternatively, the person might be inclined to invest in a superannuation fund that charged lower fees than the highest performing fund so as to produce a better net return, after taking account of fees.  Fees may be an important, but not a decisive, consideration.  Are paying higher fees warranted to achieve an overall net benefit?  Can higher fees in Superannuation Fund A be justified compared to the fees of Superannuation Fund B because of their comparative investment performance?
  8. [97]
    Turning from these generalities to the specifics of this matter, any superannuation fund in which a large proportion of the trust moneys was to be invested would charge fees.  Investing in PTSuper had financial benefits for Tyson.  The trustee fees paid to PTQ and later PTCo were calculated only on the funds remaining in the trust, and not the funds within the superannuation environment.  If the funds had been placed in a “public offer superannuation fund”, the trustee would have been entitled to charge trustee fees for the funds placed with that fund. 
  9. [98]
    The trustee, being PTQ and later PTCo, did not charge or does not charge for supervision of and coordination with PTSuper, which they would have done in dealing with a third‑party superannuation trustee.  PTSuper did not charge an establishment fee when it received the money, which a third‑party superannuation fund would have been entitled to charge.  PTSuper charges according to its advertised rates but passes on to Tyson all fee rebates from the managers of the funds in which the superannuation moneys are invested. 
  10. [99]
    Other practical benefits arose because PTSuper is a related entity to the trustee.  The same officers manage the court-ordered damages trust and Tyson’s interest in superannuation.  PTCo and PTSuper approach investment decisions on the basis of the same financial advice.  Because of the management structure within the Perpetual Group, the funds invested in superannuation and those not invested in superannuation are able to be effectively treated as a single pool. 
  11. [100]
    Once the decision was made to utilise superannuation, and because when utilising superannuation the legal title in the trust funds is being transferred to a new trustee, the view was taken within Perpetual that Perpetual superannuation funds would be used to provide what Mr Baker’s affidavit describes as “certainty of control”.  Had the money been placed with a third-party superannuation fund, there would not have been a similar measure of control.   
  12. [101]
    I do not find that PTQ in making the original investment in PTSuper, or PTCo in maintaining that investment, was motivated by the benefits that would accrue to a related company, namely PTSuper, in earning fees.  However, I reiterate that the test is not concerned with subjective motivations.  It is sufficient if the trustee is swayed by loyalty to the group of which it forms part.  The no-conflict rule seeks to protect against the unconscious influence of favouring an associate with which the trustee is familiar.
  13. [102]
    One matter, helpfully raised in the respondent’s further submissions, is the evidence given on behalf of the applicant that other superannuation products were not considered “given the additional fees involved for the client if the funds were invested with external superannuation providers”.  In theory, additional fees might have been justified if the alternative superannuation providers offered investments that were likely to yield an overall net benefit to Tyson, after account was taken of their additional fees.  There is no evidence that third-party superannuation funds would provide that net benefit.  Nevertheless, it might be argued that there was an unconscious breach of the no-conflict rule because the favourable fee arrangement with a related entity swayed the trustee to not consider alternatives. 
  14. [103]
    One possible reason to conclude that there was a conflict in that regard would be to encourage trustees in similar cases to not make decisions based simply on a comparison between fees.  Savings on fees is obviously a relevant factor in deciding whether a reasonable person, in the circumstances, would conclude that there was a “real sensible possibility of a conflict”.  However, it would be wrong to treat a favourable fee arrangement with a related company as itself justifying what otherwise would be a conflict of interest.  If, for example, the favourable fee arrangement entailed investment in a related superannuation fund that had an inferior investment performance, any savings on fees might be outweighed by reduced returns on investment.
  15. [104]
    I mention these matters to discourage any suggestion that a similar arrangement to that struck in this case, or simply a more attractive fee structure, justifies a trustee investing in a superannuation fund that is managed by a related entity.
  16. [105]
    In this case, however, a saving on fees was not the only reason that decisions were made to select PTSuper.
  17. [106]
    In the present circumstances, any breach of the duty to avoid a conflict seems more theoretical than real.  There is no evidence that an alternative third‑party superannuation fund would have provided a superior investment return after account was taken for the total fees that would be charged by both the trustee and the superannuation fund.  There is no basis to conclude that Tyson suffered a loss because of the decision to invest in PTSuper.  On the contrary, there were financial benefits in terms of fees and practical benefits in investing in PTSuper.  It was a leading superannuation trustee with an attractive investment record.  The decision to invest in a superannuation fund managed by it was an appropriate and prudent decision.  There were financial and other practical benefits to Tyson in placing a substantial part of the trust fund with PTSuper. 
  18. [107]
    There was no administrator to protect Tyson’s interests in a superannuation fund.  In the circumstances, the trustee was able to retain a measure of control over the superannuation which would not have been available had it been placed with an unrelated fund.
  19. [108]
    The possibility existed of the trustee being swayed by its relationship with PTSuper.  However, in the circumstances of this case, I adopt, with respect, the observations of Deane J in Chan v Zacharia about the dangers of inflexibility and the need for there to be some adjustment of general principles to particular facts.  Given the clear benefits to Tyson in investing in PTSuper, it would be unconscientious to require the trustee to account for fees earned by PTSuper.  It would be unconscientious because higher overall fees would have been payable had the trustee invested in a third‑party superannuation fund.
  20. [109]
    Having regard to the financial and other benefits that were secured for Tyson by the arrangement in relation to management fees, and the other matters that I have mentioned, I conclude that a reasonable person, looking at the relevant facts and circumstances, would conclude that there was not a “real sensible possibility of a conflict”.
  21. [110]
    In the circumstances, I am disposed to give the advice or directions sought in paragraph 4 of the originating application, namely that PTCo and PTQ, as trustees, were justified in paying the relevant amounts to PTSuper, and allowing those amounts and any accretions to remain with it.  I will also advise the trustee that it is justified in requesting or directing PTSuper to pay Tyson’s entitlement in those superannuation plans to the trustee of such other superannuation fund as is in the interests of Tyson.
  22. [111]
    For completeness, I should add that had I not been inclined to make such an order, I would have granted the relief sought in paragraph 5, namely an order varying the trust so as to permit such a payment, and making an order pursuant to s 76 of the Trusts Act relieving the trustee of any liability for breach of trust in paying the amounts, or allowing the amounts to remain with PTSuper. 

Vesting Tyson’s rights under the Superannuation Trust Deed

  1. [112]
    In the absence of a financial administrator, Tyson’s rights as a beneficiary of the superannuation trust have been informally managed on his behalf by PTQ and PTCo.  Because of the number of Court ordered damages trusts for infants of which PTCo is trustee, it is a matter of some importance to it to establish a proper legal basis for exercising such rights on behalf of beneficiaries.
  2. [113]
    Under a superannuation trust deed a beneficiary has an equitable proprietary interest in the fund, but not a proprietary interest in any particular assets of the fund.  If there is no immediate right to payment this is a prospective but not a contingent interest.[58]
  3. [114]
    The Court of Appeal of Victoria in Shimshon v MLC Nominees Pty Ltd[59] considered the nature of the interest of a member of a superannuation fund and concluded that it is not properly characterized as contingent.[60]  The Court concluded that superannuation funds are different in nature from traditional trusts and that the general law had developed to recognize the particular features of a member’s interest as “an equitable proprietary interest in the fund, although there is no immediate right to payment …”[61] 
  4. [115]
    As PTCo submits, these rights of the beneficiary are an equitable chose in action which may be made the subject of a trust.[62]  Under s 80 of the Trusts Act 1973, the Court may appoint a trustee of that chose in action whenever it is “expedient” to do so.  In exercising that jurisdiction, the beneficiary’s welfare is the dominant consideration.[63]  The Court’s inherent jurisdiction is at least as wide as this statutory power.[64]
  5. [116]
    I accept the submission that it is “expedient” for a trustee of this chose in action to be appointed for Tyson, because:
    1. due to his legal disability, Tyson cannot manage that chose in action;
    2. until an administrator is appointed, there is no one with authority to manage it;
    3. undoubtedly it is for Tyson’s benefit that it be managed. 
  6. [117]
    I will appoint PTCo as the trustee of the chose in action.  Under s 82(2)(a) of the Trusts Act 1973, the Court should make an order vesting that chose in action in PTCo as the trustee of the court-ordered damages trust.  Having separate trusts of the remaining damages award and of this chose in action is undesirable. 
  7. [118]
    Therefore, I will make an order in terms of paragraph 6 of the amended originating application.

Compensation for delayed payment

  1. [119]
    The Financial Management Plan (“FMP”) developed for Tyson by PTQ in December 2009 recommended that the $4.25 million paid by PTQ to PTSuper be invested by PTSuper in a three-stage market entry strategy at six-month intervals.  Shortly stated, it recommended:
    1. immediately investing $212,500 in PTSuper’s Cash Option;
    2. immediately investing $850,000 in PTSuper’s Fixed Interest Option;
    3. investing $531,250 in PTSuper’s Real Estate Option by initially placing $177,083 in the Real Estate Option, with two further tranches to be invested at six‑month intervals.  In the meantime, the balance be kept in the Cash Option;
    4. investing $1,593,750 in PTSuper’s Australian Share Option by initially placing $531,250 in the Australian Share Option, with two further tranches to be invested at six-month intervals.  In the meantime, the balance be kept in the Cash Option; 
    5. investing $1,062,500 in PTSuper’s International Share Option by initially placing $354,167 in the International Share Option (note: the FMP reads “Real Estate Option” but this is a typographical error), with two further tranches to be invested at six-month intervals.  In the meantime, the balance be kept in the Cash Option. 
  2. [120]
    On receipt of the $4.25 million from PTQ on 23 November 2009, PTSuper placed that money in a cash account.  Contrary to the FMP, the first of the staged investments was not made until 24 April 2010, and the money remained in the cash account until then.  The stage two and three investments were made on 2 March 2011.
  3. [121]
    The parties accept that:
    1. PTQ was under a fiduciary duty to Tyson to make proper enquiries of PTSuper to ensure that the money was invested according to the FMP;
    2. PTQ breached this duty;
    3. PTCo is liable to compensate Tyson for loss sustained as a result of that breach of duty.
  4. [122]
    Extensive work has been undertaken to calculate the amount of Tyson’s loss.  Based on an initial calculation, PTCo paid $367,430 to PTSuper to credit Tyson’s account on 24 January 2020.  Additional, external advice was obtained and a further $11,625.86 was paid on 17 September 2020.
  5. [123]
    The respondent, Tyson’s litigation guardian, obtained a report from another firm about the adequacy of the compensation.  It is unnecessary to detail the various calculations undertaken by BDO and Vincents.  They are helpfully outlined in the parties’ written submissions.  There remains a slight difference in the calculation and the respondent accepts the opinion in the Second BDO Report and says that the cost and effort in settling the differences between the Vincents Report and the Second BDO Report would outweigh any likely benefit to Tyson.
  6. [124]
    It is appropriate in order to resolve any uncertainty by making a declaration.  I will grant leave to amend the originating application to reflect the agreed figure of $379,055.86.  I will grant a declaration in terms of paragraph 7 of the amended originating application.  Because of the delays in resolving this matter, it is appropriate to also grant leave to continue the proceeding despite this delay.

Termination of the trust

  1. [125]
    QCAT has appointed Tyson’s mother as his financial administrator for all matters except the balance of the damages award and any accretions to it and the rights of Tyson as a member of superannuation and pension funds. 
  2. [126]
    Paragraph 2 of the Order made on 25 August 2009 provided:

“Perpetual Trustee Queensland Limited … be appointed to … hold … the … compromise sum … on trust for the applicant until any appointment pursuant to the Guardianship & Administration Act 2000 of an administrator for the applicant to receive and manage the balance of the compromise sum and any accretions takes effect.”

  1. [127]
    PTCo submits, and I accept, that the order is self-executing.  Upon the appointment by QCAT of an administrator for the financial matters associated with the trust, the trust established by the Order will end. 
  2. [128]
    PTCo seeks a declaration confirming that, on the proper construction of the Order, the trust terminates upon QCAT appointing an administrator for Tyson to receive and manage the assets of the trust.  The respondent supports the making of that declaration.  I will make that declaration.

The appointment of an administrator

  1. [129]
    Two issues arise.  The first is whether it is appropriate for PTCo to apply for the appointment of an administrator for the financial matters not covered by the appointment of Tyson’s mother.  The second is whether PTCo is justified in funding the application from the assets of Tyson’s trust.
  2. [130]
    I conclude that it is appropriate for an application to be made.
  3. [131]
    An application pursuant to the Guardianship and Administration Act 2000 (“GAA”) for the appointment of an administrator[65] to do that which Tyson could have done if he had capacity[66] in respect of the assets of Tyson’s trust is appropriate because:
    1. the order contemplates the appointment of an administrator, and necessarily an application for such an appointment;
    2. the appointment and supervision of an administrator by QCAT, the power to review that appointment and the obligations imposed on an administrator reflect a scheme established in part for appointment and supervision of appropriate substitute decision-making on behalf of adults with impaired capacity.[67]
  4. [132]
    A strong case exists for the appointment of an administrator because:
    1. Tyson’s rights as a superannuation beneficiary are his most valuable assets and they should be actively managed by someone with formal legal authority to do so;
    2. The Court’s order envisaged the appointment of an administrator for the damages award once Tyson turned 18.  This reflects Parliament’s preference, evident in the GAA, that the management of the affairs of incapacitated adults be by way of administration and not trusteeship;
    3. as a substitute decision-maker, an administrator has greater flexibility in investments than a trustee;[68]
    4. QCAT is inquisitorial and reviews financial administrations.  This Court only adjudicates on matters brought before it.  QCAT therefore provides a greater level of supervision over the financial affairs of adults.  QCAT’s procedures should be more cost effective as they are informal and, save for exceptional circumstances, each party bears its own costs in QCAT proceedings.[69] 
  5. [133]
    PTCo is an appropriate party to make the application because it has a good working relationship with Tyson’s parents and is familiar with his financial affairs.  It will be a matter for QCAT to decide if PTCo or some other party is appointed as administrator.  One factor for its consideration will be the cost and inconvenience of a new administrator familiarising itself with Tyson’s affairs.  Another matter is that PTCo will not charge an establishment fee if appointed as administrator.  Those and other matters are for QCAT’s consideration. 
  6. [134]
    Therefore, I will give a direction that PTCo is justified in applying to QCAT for an order appointing an administrator for the financial matters not covered in the appointment of Tyson’s mother, and to receive and manage the assets of the trust.  I will also direct that PTCo is justified in applying to seek an order that it be appointed as administrator.  When seeking an appointment, PTCo will be required to disclose any potential conflict of duty and interest arising from that appointment.[70]
  7. [135]
    The final issue is whether PTCo is justified in using the funds of the trust to make the application. 
  8. [136]
    The respondent supports such a declaration, and advances four reasons for making it.
  9. [137]
    First, accepting that an application should be made for the appointment of an administrator, PTCo (if it did not contend for appointment) would either make that application or appear as an “active party” in an application made by another.
  10. [138]
    PTCo would be entitled to draw from Tyson’s trust sufficient funds to make such an application or to assist the Tribunal as an active party.
  11. [139]
    Second, the respondent favours the appointment of PTCo as administrator for the assets that are presently held on trust. 
  12. [140]
    Third, QCAT will determine the appropriate appointee, and an application must be brought for the Tribunal’s consideration.  No application in respect of the funds of Tyson’s trust has been made to date.
  13. [141]
    Fourth, without anticipating the decision of QCAT, an application by PTCo to be appointed administrator has merit:
    1. PTCo has had long involvement with Tyson, his family and the administration of Tyson’s trust and that familiarity and knowledge would benefit Tyson if Perpetual were appointed administrator;
    2. Tyson has assets, including the value of his membership of PT Super (as at 30 June 2021) with a value of in excess of $8,356,736.01 which assets appropriately ought be managed by a professional administrator;
    3. PTCo intends, if appointed administrator not to charge “any new establishment fees” and there would be some continuity in the management of Tyson’s assets in respect of the investment best suited to Tyson.
  14. [142]
    Therefore, I will make the requested declarations.

Disposition and orders

  1. [143]
    I request counsel to settle and bring in a form of order and directions that reflect the orders that these reasons indicate I propose to make.       

Footnotes

[1] Corporations Act 2001 (Cth), s 601WBJ.

[2]  (2011) 42 WAR 209 (“Cheyne”).

[3] Noble v The Public Trustee of Queensland [1994] 1 Qd R 402, 405.

[4] Cheyne at [51]-[56].

[5]  [2012] WASC 31 at [10]-[14] (where its correctness was accepted by the parties).

[6]  [2015] WASC 43 at [42].

[7]  [2020] NSWSC 818.

[8]  At [73].

[9]  At [54].

[10]  [2013] QSC 183.

[11] Cheyne at [46]. The word “apply” means “devoting to” or “employing for the purpose of”: Cheyne at [41].

[12] At [43] and [46].

[13]  See, for example, Re The Public Trustee of Queensland [2013] QSC 183 at [3]; Re Hoang Min Le [2012] WASC 31 at [17]-[21]; Cornell v Cornell [2015] WASC 43 at [57]-[61].

[14] Re PWJ [2013] QCAT 368 [105].

[15] Re CAC [2009] QGAAT 63.

[16]  [1967] 2 AC 46 at 124.

[17]  (1978) 18 ALR 1.

[18]  [1994] 1 NZLR 690 (“Jones”).

[19] As an example, see Re PWJ, supra, at [106]-[108].

[20]  (2020) 49 Australian Bar Review 1.

[21] Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165 at 197 [74] (“Pilmer”), adopting Breen v Williams (1996) 186 CLR 71 at 113.

[22] Chan v Zacharia (1984) 154 CLR 178 at 198-199.

[23]  J C Campbell ‘Obligations and Powers of Superannuation Trustees Concerning Situations of Actual or Possible Conflict’ (2020) 49 Australian Bar Review 1 (“Campbell”).

[24] Campbell at pp 12-17.

[25]  This is how an ordinary person would describe it despite the legal analysis in Cheyne which I follow.

[26] Campbell at pp 4-5.

[27] Campbell at p 4.

[28] Campbell at p 4 citing Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143 at [71].

[29] Pilmer at 199 [78] citing Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 103.

[30]  [1896] AC 44 at 51-2, adopted in Breen v Williams.

[31]  1 Macq 461, [1843-60] All ER Rep 249.

[32]  [1967] 2 AC 46 at 124.

[33] Pilmer at 199 [78].

[34] Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1 at 558 [4504].

[35] Clay v Clay (2001) 202 CLR 410 at 436 [56] which held there was no breach of fiduciary duty because “there was no sensible real or substantial possibility of conflict in the necessary sense”.

[36]  [2016] 1 NZLR 354 at 377 [74].

[37]  (1984) 154 CLR 178 at 198.

[38]  At 198-9.

[39]  (1984) 154 CLR 178 at 205 (footnotes omitted).

[40]  At 204-205.

[41]  18th Ed at [27.103].

[42]  Langbein ‘Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?’ (2005) 114 Yale LJ 929.

[43] Jones at 708.

[44]  Ibid.

[45]  At 710.

[46]  At 710.

[47]  At 711.

[48]  [1967] 2 AC 46 at 124.

[49]  [1978] 18 ALR 1 at 3.

[50]  At 711.

[51] Campbell at 19.

[52] Campbell at 19.

[53] Chan v Zacharia (1984) 154 CLR 178 at 198-199.

[54]  Ford and Lee: The Law of Trusts, Thomson Reuters [9.21010].

[55] Campbell at 19.

[56]  1 Macq 461 at 471-2.

[57]  See, for example, Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 at 394 citing Birtchnell v Equity Trustees, Executors & Agency Co Ltd (1929) 42 CLR 384 at 409-9 and Parker v McKenna (1874) LR 10 Ch App 96 at 124-5.

[58] Benson v Cook (2001) 114 FCR 542, [21] (Beaumont J), [80] (Kiefel J), [141] (Hely J)

[59]  (2021) 66 VR 277 (“Shimshon”).

[60] Shimshon at 290 [35].

[61] Shimshon at [39].

[62]  Ford & Lee, Principles of the Law of Trusts [4.810]; Heydon and Leeming, Jacobs’ Law of Trusts in Australia, 8Ed, [24-03].

[63]  Queensland Law Reform Commission, A Review of the Trusts Act 1973 (Qld) WP 71, [12.8]

[64]  At [12.6], [12.13].

[65] GAA, ss 12 and 15.

[66] GAA, s 33(2).

[67] Re Tracey [2016] QCA 194 at [26]-[27].

[68] G v G (No 2), supra at [73] adopting the NSW Trustee & Guardian’s Report annexed to that judgment.

[69] GAA, s 127.

[70] GAA, s 16(2).

Close

Editorial Notes

  • Published Case Name:

    Perpetual Trustee Company Limited v Shambrook

  • Shortened Case Name:

    Perpetual Trustee Company Ltd v Shambrook

  • MNC:

    [2024] QSC 105

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    30 May 2024

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aberdeen Railway Co v Blaikie Brothers [1843-60] All ER Rep 249
1 citation
Jump To
Cite 1 - [1843-60] All ER Rep 249
Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1
2 citations
Jump To
Cite 1 - (2008) 39 WAR 1
Cite 2 - (2008) 39 WAR 1
Benson v Cook (2001) 114 FCR 54
1 citation
Jump To
Cite 1 - (2001) 114 FCR 54
Benson v Cook (2001) 114 FCR 542
1 citation
Jump To
Cite 1 - (2001) 114 FCR 542
Birtchnell v The Equity Trustees Executors & Agency Coy Ltd (1929) 42 CLR 384
1 citation
Jump To
Cite 1 - (1929) 42 CLR 384
Bray v Ford (1896) AC 44
1 citation
Jump To
Cite 1 - (1896) AC 44
Bray v Ford [1896] AC 41
1 citation
Jump To
Cite 1 - [1896] AC 41
Breen v Williams (1996) 186 CLR 71
2 citations
Jump To
Cite 1 - (1996) 186 CLR 71
Cite 2 - (1996) 186 CLR 71
Chan v Zacharia (1984) 154 CLR 178
5 citations
Jump To
Cite 1 - (1984) 154 CLR 178
Cite 2 - (1984) 154 CLR 178
Cite 3 - (1984) 154 CLR 178
Cite 4 - (1984) 154 CLR 178
Cite 5 - (1984) 154 CLR 178
Clay v Clay (2001) 202 CLR 410
2 citations
Jump To
Cite 1 - (2001) 202 CLR 410
Cite 2 - (2001) 202 CLR 410
Consul Development Pty Limited v DPC Estates Pty Ltd (1975) 132 CLR 373
2 citations
Jump To
Cite 1 - (1975) 132 CLR 373
Cite 2 - (1975) 132 CLR 373
Cornell v Cornell [2015] WASC 43
3 citations
Jump To
Cite 1 - [2015] WASC 43
Cite 2 - [2015] WASC 43
Cite 3 - [2015] WASC 43
Fenwick v Naera [2016] 1 NZLR 354
2 citations
Jump To
Cite 1 - [2016] 1 NZLR 354
Cite 2 - [2016] 1 NZLR 354
G v G (No 2) [2020] NSWSC 818
2 citations
Jump To
Cite 1 - [2020] NSWSC 818
Cite 2 - [2020] NSWSC 818
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
2 citations
Jump To
Cite 1 - (1984) 156 CLR 41
Cite 2 - (1984) 156 CLR 41
Jones v AMP Perpetual Trustee Company NZ Ltd [1994] 1 NZLR 690
2 citations
Jump To
Cite 1 - [1994] 1 NZLR 690
Cite 2 - [1994] 1 NZLR 690
Langbein 'Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?' (2005) 114 YLJ 929
1 citation
Jump To
Cite 1 - (2005) 114 YLJ 929
Noble v Public Trustee of Queensland [1994] 1 Qd R 402
2 citations
Jump To
Cite 1 - [1994] 1 Qd R 402
Cite 2 - [1994] 1 Qd R 402
Parker v McKenna (1874) LR 10 Ch App 96
1 citation
Jump To
Cite 1 - (1874) LR 10 Ch App 96
Perpetual Trustee Company Limited v Cheyne (2011) 42 WAR 209
2 citations
Jump To
Cite 1 - (2011) 42 WAR 209
Cite 2 - (2011) 42 WAR 209
Peso Silver Mines Ltd (N.P.L.) v Cropper (1966) 58 DLR 2
1 citation
Jump To
Cite 1 - (1966) 58 DLR 2
Peso Silver Mines v Cropper (1966) 58 D.L.R. (2d) 1
1 citation
Jump To
Cite 1 - (1966) 58 D.L.R. (2d) 1
Phipps v Boardman (1967) 2 AC 46
4 citations
Jump To
Cite 1 - (1967) 2 AC 46
Cite 2 - (1967) 2 AC 46
Cite 3 - (1967) 2 AC 46
Cite 4 - (1967) 2 AC 46
Pilmer v Duke Group Ltd (2001) 207 CLR 165
2 citations
Jump To
Cite 1 - (2001) 207 CLR 165
Cite 2 - (2001) 207 CLR 165
PWJ [2013] QCAT 368
2 citations
Jump To
Cite 1 - [2013] QCAT 368
Cite 2 - [2013] QCAT 368
Queensland Mines Ltd v Hudson (1978) 18 ALR 1
3 citations
Jump To
Cite 1 - (1978) 18 ALR 1
Cite 2 - (1978) 18 ALR 1
Cite 3 - (1978) 18 ALR 1
Re CAC [2009] QGAAT 63
2 citations
Jump To
Cite 1 - [2009] QGAAT 63
Cite 2 - [2009] QGAAT 63
Re Hoang Minh Le; ex parte The Public Trustee [2012] WASC 31
3 citations
Jump To
Cite 1 - [2012] WASC 31
Cite 2 - [2012] WASC 31
Cite 3 - [2012] WASC 31
Re Public Trustee of Queensland [2013] QSC 183
3 citations
Jump To
Cite 1 - [2013] QSC 183
Cite 2 - [2013] QSC 183
Cite 3 - [2013] QSC 183
Re Tracey[2017] 2 Qd R 35; [2016] QCA 194
2 citations
Jump To
Cite 1 - [2016] QCA 194
Cite 2 - [2016] QCA 194
Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143
2 citations
Jump To
Cite 1 - [2009] WASCA 143
Cite 2 - [2009] WASCA 143
Shimshon v MLC Nominees Pty Ltd & Anor (2021) 66 VR 277
2 citations
Jump To
Cite 1 - (2021) 66 VR 277
Cite 2 - (2021) 66 VR 277

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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