Delores Jean Caboche and Peter Nommel Gleeson v Robert Eastaugh Ramsay, John Bond, Craig Bond, Susanne Bond, Jody Bond, Eileen Teresa Bond, Alan Bond John Bond, Craig Bond, Susanne Bond, Jody Bond, Eileen Teresa Bond v Robert Eastaugh Ramsay, Dolores Jea [1993] FCA 611

Delores Jean Caboche and Peter Nommel Gleeson v Robert Eastaugh Ramsay, John Bond, Craig Bond, Susanne Bond, Jody Bond, Eileen Teresa Bond, Alan Bond John Bond, Craig Bond, Susanne Bond, Jody Bond, Eileen Teresa Bond v Robert Eastaugh Ramsay, Dolores Jea [1993] FCA 611 - FCA 1993 case summary — Zoe

[69]

"16 (1) A Benefit payable out of the Fund shall not be

assignable at law or in equity.

(2) If a person to whom a Benefit is or may be payable

under this Deed and the Rules does or permits to be

done any act or thing or some event happens whereby

the whole or any part of that Benefit may become

payable to or vested in any other person then that

Benefit shall be forfeited to the Fund.

(3) If a person entitled to a Benefit under this Deed

or the Rules becomes bankrupt or insane or in the

opinion of the Trustees becomes incapable of

managing his own affairs then that Benefit shall

immediately be forfeited to the Fund.

(4) If a person entitled to a Benefit under this Deed

or the Rules cannot be located by the Trustees

after reasonable inquiries then at any time after

the expiration of two (2) years from the date on

which a payment was last made to him by an Employer

or by the Trustees that Benefit may at the absolute

discretion of the Trustees be forfeited to the

Fund.

(5) Where a Benefit has been forfeited pursuant to

sub-clauses (2), (3) or (4) then subject to sub-clauses

(6) and (7) the Trustees in their absolute

discretion may at any time pay out of the Fund such

amount or amounts as they think fit to or for the

benefit or maintenance of:

(a) the person who but for this Clause would have

been entitled to the Benefit; or

(b) any one or more of his Dependants.

(6) Any amounts payable under sub-clause (5):

(a) shall not exceed in total the aggregate that

would but for this Clause have been payable

to or in respect of that person; and

(b) subject to sub-clause (7) may be paid to such

persons as the Trustees think fit without

being liable to see to its application.

(7) While the Member to whom the forfeited Benefit was

attributable remains in the employment of an

Employer no amount payable pursuant to sub-clause

(5) shall be paid to any person other than for the

support and maintenance of that person in the case

of hardship.

(8) Where a Benefit has been forfeited pursuant to

sub-clauses (2), (3) or (4) and has not been applied in

the manner set forth in sub-clause (5), the

Trustees may apply the forfeited Benefit to such

other purposes as may be approved by the

Commissioner."

[82]

"THE COURT DECLARES THAT:

1. Upon the proper construction of the rules of the

Investors Retirement Fund ("the Fund") constituted by the

Trust Deed and Rules dated 9 February 1990 and in the

events that have happened:

(a) at the very latest upon Mr Alan Bond ceasing to be

a director of Bond Corporations Holdings Limited on

26 September 1990, Mr Alan Bond -

(i) became absolutely entitled to payment to him

of the amount standing or which properly

should have stood to the credit of his member

account as at 26 September 1990 less the

amount calculated in accordance with the

formula set out in paragraph 1 (b) hereof,

("the preserved amount").

(ii) became entitled to the preserved amount

subject to the trusts set out in the

provisions of the Trust Deed and Rules of the

Fund.

(b) The preserved amount is an amount calculated in

accordance with the formula:

(A) - ($2,448,456 + investment earnings on

that amount for the period from 1 September

1990 to 26 September 1990 net of tax and

expenses which are agreed at $15,000).

Where A = the amount standing or which

properly should have stood to the credit of

Mr Alan Bond's member account as at 26

September 1990.

(c) Upon Mr Alan Bond becoming a bankrupt on 14 April

1992, pursuant to s. 58 of the Bankruptcy Act, 1966

(Cth) the entitlements of Mr Alan Bond referred to

in (a) above vested in the applicant as the trustee

of the bankrupt estate of Mr Alan Bond.

THE COURT ORDERS THAT:

2. Liberty to the parties to apply to enable further

declarations to be made once the amounts referred to in

paragraphs (a) and (b) above have been precisely

quantified, and for the purpose of orders being made for

the payment of those amounts once ascertained.

3. The first and second Respondents pay to the Applicant out

of the Fund the amount referred to in paragraph 1 (a) (i)

above that amount being ascertained.

. . .

7. The third to seventh Respondents inclusive and each of

them pay the costs of the Applicant and of the first and

second Respondents of these proceedings taxed in

accordance with the scale set out in Schedule 2 of the

Federal Court Rules, other than in respect of the

preservation issue resolved by agreement in the

proceedings listed for hearing on 31 March 1993.

8. The costs of all parties in respect of the preservation

issues be paid out of the assets of the Fund and be taxed

on a common fund basis.

. . ."

[220]

"1. DEFINITIONS AND INTERPRETATION

'Benefit'" means any amount paid or payable by

the Trustees out of the Fund pursuant to this

Deed or the Rules to or in respect of a Member;

...

'Normal Retirement Date' in respect of a Member

means his 65th birthday or such other date as

may be agreed upon by the Member and the

Trustees in a particular case (not being earlier

than the Member's fifty-fifth (55th) birthday);

...

'Preserved Benefit' mean (sic) so much of a

Benefit as is required by the Regulations to be preserved;

...

'Regulations' means the regulations made under

the Standards Act as amended from time to time;

...

'Standards Act' means the Occupational

Superannuation Standards Act 1987 (Cth.) as

amended from time to time and any Act in

substitution therefor;

...

16. FORFEITURE OF ENTITLEMENTS

(1) A Benefit payable out of the Fund shall

not be assignable at law or in equity.

(2) If a person to whom a Benefit is or may

be payable under this Deed and the

Rules does or permits to be done any

act or thing or some event happens

whereby the whole or any part of that

Benefit may become payable to or vested

in any other person then that Benefit

shall be forfeited to the Fund.

(3) If a person entitled to a Benefit under

this Deed or the Rules becomes bankrupt

or insane or in the opinion of the

Trustees becomes incapable of managing

his own affairs then that Benefit shall

immediately be forfeited to the Fund.

(4) If a person entitled to Benefit under

this Deed or the Rules cannot be

located by the Trustees after

reasonable enquiries then at any time

after the expiration of two (2) years

from the date on which a payment was

last made to him by an Employer or by

the Trustees that Benefit may at the

absolute discretion of the Trustees be

forfeited to the Fund.

(5) Where a Benefit has been forfeited

pursuant to sub-clauses (2), (3) or (4)

then subject to sub-clauses (6) and (7)

the Trustees in their absolute

discretion may at any time pay out of

the Fund such amount or amounts as they

think fit to or for the benefit or

maintenance of:

(a) the person who but for this

Clause would have been

entitled to the Benefit; or

(b) any one or more of his

Dependants.

(6) Any amounts payable under sub-clause

(5):

(a) shall not exceed in total

the aggregate that would

but for this Clause have

been payable to or in

respect of that person; and

(b) subject to sub-clause (7)

may be paid to such persons

as the Trustees think fit

without being liable to see

to its application.

(7) While the Member to whom the forfeited

Benefit was attributable remains in the

employment of an Employer no amount

payable pursuant to sub-clause (5)

shall be paid to any person other than

for the support and maintenance of that

person in the case of hardship.

(8) Where a Benefit has been forfeited

pursuant to sub-clauses (2), (3) or (4)

and has not been applied in the manner

set forth in sub-clause (5), the

Trustees may apply the forfeited

Benefit to such other purposes as may

be approved by the Commissioner."

[222]

"...

9. RETIREMENT BENEFITS

(1) If a Member retires from the employment

of an Employer and from the workforce

on or after his Normal Retirement Date

then, subject to the Deed and these

Rules, the Trustees shall pay to that

Member a lump sum Benefit equal to his

Member Account Balance.

(2) If a Member retires from the employment

of an Employer but not from the

workforce then, subject to the Deed and

these Rules, the Member shall become

entitled to:

(a) a lump sum Benefit equal to

such portion of his Member

Account Balance, as is

permitted under the

Standards Act or the

Regulations; and

(b) a Preserved Benefit equal

to the remaining portion of

his Member Account Balance.

...

14. BENEFITS ON TERMINATION OF EMPLOYMENT

(1) Subject to the Deed and these Rules if

a Member ceases to be in the employment

of an Employer before his Normal

Retirement Date otherwise than as

provided in Rules 9, 11 or 13 or

sub-rule (2) that Member shall become

entitled to:

(a) a lump sum Benefit equal to

the aggregate of:

(i) his Member Account Balance;

(ii) a Preserved Benefit equal to the amount

standing to the credit of his Preserved

Benefit Account;

(iii) the percentage of his General Account

Allocation as may be determined by the

Trustees,

as is permitted under the Standards Act

and the Regulations PROVIDED THAT the

amount payable shall not exceed the

amount permissible in accordance with

the reasonable benefit limits under the

Standards Act and Regulations; and

(2) Subject to the Deed and these Rules if

a Member ceases to be in the employment

of an Employer due to Retrenchment or

Ill Health that Member shall become

entitled to a Benefit determined in

accordance with Rule 9 as if the Member

had retired on the date he ceased

employment. If the Member has attained

the age of fifty five (55) years and

retires from the workforce upon ceasing

to be in the employment of the

Employer, the Benefit shall be

determined in accordance with Rule

9(1); otherwise it shall be determined

in accordance with Rule 9(2).

15. PRESERVED BENEFIT ACCOUNTS

(1) The Trustees shall in respect of each

Member who becomes entitled to a

Preserved Benefit:

(a) establish a Preserved

Benefit Account in the name

of the Member upon his

becoming entitled to that

Benefit; and

(b) in the manner provided in

this Rule and Rule 8

maintain a record of the

Preserved Benefit Account

of the Member.

(2) The amount of the Preserved Benefit to

which the Member becomes entitled shall

be added to his Preserved Benefit

Account Balance.

(3) If the Member:-

(a) retires from the workforce

on or after his fifty-fifth

(55th) birthday; or

(b) retires from the workforce

prior to his fifty-fifth

(55th) birthday as a result

of illness or incapacity

and has furnished to the

Trustees a certificate of

the kind referred to in

Rule 13(4)(a); or

(c) dies; or

(d) departs the Commonwealth to

reside permanently

overseas; or

(e) requests the payment of his

Preserved Benefit Account

Balance in such

circumstances as are

approved from time to time

under the Standards Act,

the Trustees shall pay to the Member or

in the case of his death to his

Dependants or his legal personal

representative in the manner provided

in Rule 12 his Preserved Benefit

Account Balance.

(4) The Trustees shall make no payment of a

Preserved Benefit or any part thereof

other than in accordance with the

Regulations and the Standards Act.

16. PAYMENT OF BENEFITS BY TRANSFER OF ASSETS

(1) The Trustees may with the approval of

the Commissioner (if required) and with

the agreement of the person entitled to

receive a Benefit pursuant to these

Rules pay or satisfy all or any part of

the Benefit by the transfer to the

person of any of the investments held

by the Trustees.

(2) For the purpose of sub-rule (1) the

value placed on any investments to be

so transferred shall be the same as the

value placed on those investments when

the Trustees last valued the assets of

the Fund.

(3) Nothing in this Rule shall entitle any

Member to any specific assets of the

Fund and the Trustees shall have

absolute discretion in determining

which of the investments shall be

transferred to the person entitled to

the Benefit.

...

24. TIME AND MODE OF PAYMENT OF BENEFITS

(1) Notwithstanding anything contained in

the Deed and these Rules (other than

Clause 1(7)) for the purpose of

facilitating the administration of the

Fund the Trustees may:-

(a) postpone the payment of any

lump sum Benefit payable

under these Rules for any

period not exceeding two

(2) months after the

happening of the event upon

which the Benefit became

payable;

(b) with the agreement of a

person to whom a Benefit is

payable postpone the

payment of any Benefit to

that person for any period

agreed upon by the Trustees

and that person; and

(c) make payment of any Benefit

payable under these Rules

themselves or cause or

arrange for such payment to

be made for or on their

behalf.

(2) Where after a Benefit has been paid

from the Fund to a Member under a Rule

it is established that the Member was

eligible for a Benefit under another

Rule then the Trustees may pay to or in

respect of that Member the Benefit

payable under the latter Rule but any

amount previously paid to the Member

shall be deducted from the Benefit

payable under the latter Rule.

(3) Where a person who is or may be

entitled to any Benefit under these

Rules is in the opinion of the Trustees

unable by reason of mental incapacity

to manage his own affairs then the

Trustees may pay that Benefit:

(a) to any other person for or

on behalf of the first

mentioned person; or

(b) to the Dependants of the

first mentioned person.

(4) A payment under the provisions of

sub-rule (3) shall without any thing more

be sufficient discharge to the

Trustees."

At a glance

Court

Decision date

Source

Judgment (257 paragraphs)

Delores Jean Caboche and Peter Nommel Gleeson v Robert Eastaugh Ramsay, John Bond, Craig Bond, Susanne Bond, Jody Bond, Eileen Teresa Bond, Alan Bond John Bond, Craig Bond, Susanne Bond, Jody Bond, Eileen Teresa Bond v Robert Eastaugh Ramsay, Dolores Jea [1993] FCA 611 (13 December 1993)

Legislation Cited (1)

Cases Cited (28)