SCS Super Pty Limited [2022] NSWSC 686

"Can we charge a fee for administering the trust?"

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A trustee sought judicial advice from the Court that it would be justified in amending a super fund trust deed. The proposed change would allow it to charge a fee to be paid from the fund: [38], [44], [67]

(The T’ee sought and was granted non-publication orders in respect of some of its commercial evidence because if it became public it could be exploited by competitors: [14], [55], [56])

The fund, which originally related to educators associated with a specific religion, had around 80K members and $10.5bn under management: [68], [69]

The T’ee had never been paid for administering the fund, and held nominal capital of $6 beneficially: [77], [80], [104]

Managing a fund of this size, the T’ee had to do complex work, which it did not outsource. As such it bore the associated risk: [82], [83], [96], [97]

Pursuant to the trust deed, the T’ee enjoyed an indemnity from the fund in relation to the costs it incurred: [101]

Recently, following the Hayne RC, the law changed.

The change effectively meant that the T’ee and its directors could not be indemnified for statutory liabilities from the fund: [114]

Thus, the T’ee risked being made insolvent if a penalty ended up being applied: [118]

(That said, the T’ee was not aware of an allegation of a breach of trust or imminent penalty: [120])

If made insolvent, the T’ee would be removed, administrators likely appointed, and a new trustee appointed - all at substantial cost, which would be visited on the fund’s members: [121], [124]

The T’ee considered various alternatives like raising capital and obtaining different insurance; while noting it also had no access to an indemnity from a third party because it did no outsourcing: [122]

The T’ee sought advice from barristers on the proposed deed amendments, and engaged with the regulator on the proposed change to the trust deed: [128]

At [130] the Court (respectfully) usefully summarises all the relevant issues which include: (i) the T’ee’s risks have increased with the change in the law; (ii) the T’ee’s work has a high degree of responsibility, range, volume and complexity; (iii) historically the T’ee has accumulated reserves in the fund which it now cannot access for the purpose of indemnifying for penalties; (iv) the T’ee has limited ability to generate its own funds; (v) regulators have indicated increased regulatory action is likely in future; and (vi) if the amendment is made the fees will be placed in a reserve with strict conditions as to its maangement.

The Court may provide judicial advice in the best interests of the trust and if the trustee acts in accordance with the advice it is deemed to have behaved in accordance with its duties: [138], [139]

The Court was satisfied the proposed amendment was proper and lawful and ordered that the T’ee would be justified in proceeding as planned: [145], [157]

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