In the matter of Gainer Associates Pty Limited [2024] NSWSC 1138

Principles

1. As a trustee, Gainer may seek advice or direction under s 63 of the Trustee Act 1925 (NSW), which provides: 63 Advice (1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument. (2) If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee's own responsibility, to have discharged the trustee's duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.
2. The judicial advice procedure is intended to be summary in character and is in the nature of private advice rather than adversarial proceedings: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [61]-[66]. There are three matters to consider: whether the Court has jurisdiction; whether the Court should exercise its discretion to provide advice; and the approach which the Court should take to giving advice.
3. As to the first matter, the jurisdiction to provide advice was stated by Gummow A-CJ, Kirby, Hayne and Heydon JJ in Macedonian at [58]: "Only one jurisdictional bar to s 63 relief exists: the applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument."
4. Turning to the second matter, once the jurisdictional requirement is satisfied, the Court has a discretion whether to provide advice, such discretion "confined only by the subject matter, scope and purpose of the legislation", where the interests of the trust estate is of "paramount importance": Re Rosewood Research Pty Ltd [2014] NSWSC 449 at [30] (Darke J). A Court is not bound to provide judicial advice merely because a trustee has a right to apply for it, ultimately, "the Court … must be guided by what it perceives to be in the best interests of the trust estate": Re Application of Doolan [2023] NSWSC 320 at [292].
5. The courts have emphasised the importance of trustees approaching the Court for advice: Partridge v Equity Trustees Executors and Agency Co Ltd (1947) 75 CLR 149 at 165. More recently in Ludwig v Jeffrey (No 2) [2020] NSWSC 1677, Slattery J noted that obtaining judicial advice may prevent trust funds being depleted in litigation and criticised a trustee for failing to avail himself of that mechanism. At [90]: "This contested litigation has been a regrettable waste of the parties' resources … in litigation against a trustee, judicial advice is an important protection not just for the trustee but for the preservation of the trust estate. Judicial advice will often reduce the risk of contested proceedings that might consume the trust estate. Judicial advice is a simple accessible summary procedure. The fact that the trustee did not take that simple course, in the Court's view is one reason that this litigation was commenced and has become expensive."
6. Allegations of breach against a trustee do not preclude the giving of advice, nor the fact that a breach of trust has already occurred: Application of Macedonian Orthodox Community Church St Petka Inc [2023] NSWSC 918 at [84]ff (Meek J). While the Court would properly decline to give judicial advice if the dispute were more apt to resolution by a contested suit constituted by the disputing parties and resolved by a judge acting on evidence, the discretion of the Court is not yoked to a principle that, where there is a contest or where there are adversaries, no advice should be given: Macedonian at [60].
7. The fact that the trustee may seek judicial advice in times of trouble or controversy is confirmed by s 85(2) of the Trustee Act 1925, under which the Court may excuse a breach of trust where it appears that the trustee has acted honestly and reasonably and ought fairly to be excused from the breach or for omitting to obtain the direction of the Court in the matter in which the trustee committed the breach. Whilst the Court can excuse a breach of trust after the fact, including for failure to obtain judicial advice, it is obviously preferable that the trustee approach the Court beforehand and thereby avoid committing a breach of trust at all.
8. Turning to the third matter, the giving of advice, the function of the Court on such an application is to determine what should be done in the best interests of the trust: Macedonian Orthodox at [104]-[107]. In providing judicial advice, "it is not the Court's function to take over the exercise of the Trustee's discretion, assess the commercial wisdom of the Trustee's decision, or tell the Trustee what to do. An order giving judicial advice is permissive … in the form that the trustee "is justified' in doing something on the basis of a specified state of affairs or assumption": Re Application by NGS Super Pty Ltd (as trustee of NGS Super) [2021] NSWSC 1694 at [60] (Henry J). It will usually be inappropriate for the Court to give advice about a matter that is substantially commercial in nature, where the Court is ill equipped to form any view on that matter: Re Application by Perpetual Trust Services Ltd (as responsible entity of Momentum AllWeather (A$) Absolute Return Fund) [2012] NSWSC 758 at [48]-[51] (Stevenson J). The question is whether the Court is satisfied that the trustee's proposed exercise of power is proper and lawful and whether the exercise of power will not be improper in the sense that it is not exercised in good faith, with real and genuine consideration or in accordance with the purpose for which it was conferred, or it is exercised for an ulterior purpose": NGS Super at [61].

Consideration

1. As to jurisdiction, the trustee has pointed to a question regarding the management or administration of the Fund, specifically, the distribution of the assets of the Fund. The Court has jurisdiction to give judicial advice.
2. As to whether the Court should exercise its discretion to give the advice sought the question is where the interests of the trust estate lie. The interests of the trust are not to be conflated with the interests of the applicants for the death benefit payment. Where both members of the Fund have passed away, it is in the interests of the trust for the trustee to complete the administration of the trust in a timely manner. Whilst the trustee has formed a view as to how it ought to proceed in attending to that task, the trustee is cautious to proceed where it is perfectly clear that distributing the death benefit in the manner proposed may expose it to further litigation by Mr Bone, NSWTG or Ms Thelen's brother. As Kiefel J observed in Macedonian Orthodox, "The principal purpose of the section … is the protection of the interests of the trust. Another purpose is the protection of a trustee who is acting in that regard and upon advice. Securing the latter purpose may ensure the attainment of the principal purpose, by removing the concern of a trustee about exposure beyond their usual indemnity": at [196]. This is one such case.
3. According to r 2.9(a), Ms Thelen's legal personal representative, NSWTG, must either be appointed as trustee of the Fund or a director of Gainer in order for the Fund to maintain compliance with the criteria for an SMSF under the SIS Act and thus its concessional tax treatment. Apparently, NSWTG was and is not amenable to becoming the replacement trustee. NSWTG's appointment of Mr Heesh as director of Gainer has had the result that the Fund is non-compliant with the criteria for an SMSF and exposed to the risk of losing its concessional tax treatment. It follows that, as the continuing appointment of Gainer as trustee has the consequence that the Fund will continue to be a non-complying SMSF, Gainer should be removed as trustee: r 2.5(b).
4. As such, the trustee has sought the direction of the Court as to how to proceed, where the trustee is in breach of the rules of the Fund. The fact that the trustee is presently in breach of the rules is a reason to seek judicial advice, rather than to proceed in the absence of such advice or not to proceed at all. I consider that it is in the best interests of the trust estate for the Court to provide advice or direction so that trust property may be managed and administered in a timely manner.
5. The problem is clear. The solution is not. A trustee cannot simply leave its role absent a replacement trustee. Nor can the Court simply appoint a new trustee, as this will not solve the problem. Unless the replacement trustee is NSWTG, then the Fund will continue to be non-compliant.
6. The trustee appears to have done its best to resolve a practical problem not of its own making. The trustee disclosed its non-compliance to the ATO and obtained a concession. According to the ATO's letter of indemnity, the Commissioner has taken a pragmatic approach in the interests of the trustee completing its function and winding up the Fund as soon as possible. As a result of the trustee's efforts, the breach of trust is unlikely to expose the beneficiaries of the Fund to the depletion of assets which may otherwise result from the loss of concessional tax treatment. By this application for judicial advice, the Court is asked to, effectively, endorse the trustee's endeavours to resolve its breach of the trust rules. I consider that it is appropriate for the Court to give advice or direction, noting that there is no other obvious solution to this problem. Mr Bone's suggestion was no better than what the trustee proposes. I reject Mr Bone's submission that the Court should give no advice at all.

PAYMENT OF THE DEATH BENEFIT

1. Mr Bone submitted, first, that the Court should decline to provide the advice sought where the trustee had not given reasons for its proposed decision in respect of the death benefit. Mr Bone accepted that a trustee exercising a discretion is not required to give reasons: Mandie v Memart Nominees Pty Ltd [2014] VSC 290; 42 VR 325. But it was said to be impossible for the Court to consider providing that approval in circumstances where Gainer had not identified the reasons for its decision: Maciejewski v Telstra Super Pty Ltd [1999] NSWSC 341; 44 NSWLR 601 at 604 (Young J). The Court should not advise Gainer to proceed in the way that it proposes without understanding why the decision to proceed in this way was made. It is also unclear whether Gainer had assumed that Ms Thelen had capacity to make the nomination or not and how, if at all, that affected Gainer's decision.
2. Second, Mr Bone submitted that the Court should decline to provide the advice sought where the trustee lacked independence. Where Mr Heesh was appointed by NSWTG, he had an obvious tendency to favour the person who appointed him in any decision he makes. Mr Heesh was exercising the discretion in a manner that benefitted the estate, which was represented by his appointor, NSWTG. The Court should not approve an exercise of the trustee's discretion in circumstances where the trustee was not entitled to continue in that role and would likely be replaced in the removal proceedings. The decision should be made by an independent person.
3. A further indication of a lack of independence was said to be that the trustee had not considered the taxation consequences of its proposed distribution. Mr Bone submitted that he was a 'death benefits dependant', as that term is defined in s 302-195 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997)), by reason of subs (a), (c) or (d) of that section. This meant, by reason of s 302-60 of the ITAA 1997, that if any part of the superannuation death benefit was paid to him, neither Gainer nor Mr Bone would be required to pay income tax on that amount. If any part of the superannuation death benefit was paid to NSWTG as executor, s 302-10 of the ITAA 1997 applied. NSWTG would be required to pay income tax "to the extent" that the amount received was expected to benefit the beneficiaries other than Mr Bone. Mr Bone estimated that some $500,000 in tax would need to be paid by NSWTG. Mr Bone submitted that the Court could not be satisfied that the trustee had given real and genuine consideration to the issues before it in a manner free of conflict of interest. The Court should not provide the trustee with the protection it seeks from the judicial advice application in respect of its proposed distribution.
4. Third, Mr Bone submitted, effectively, that a proper exercise of the trustee's discretion would be to pay the death benefit to him alone. The decision to pay 100% of the death benefit to a de facto and sole dependent was described in Ievers v Superannuation Complaints Tribunal [2016] FCA 936 as "a legitimate and sensible exercise of a discretion. It is difficult to see that any other decision could or should have been taken": at [71] (McKerracher J).
5. NSWTG made no submissions on this issue.

Consideration

1. There was no dispute that the rules of the Fund permitted the trustee to pay the death benefit to Mr Bone or the estate, or that Ms Thelen's Binding Death Benefits Nomination could be taken into account, albeit that the nomination was ineffective. Nor was there any dispute as to the principles governing the trustee's exercise of its discretion.
2. The determination of the payment of the death benefit is within the discretion of the trustee. The exercise of the discretion must be made in good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred: Karger v Paul [1984] VR 161 at 163-164; Telstra Super Pty Ltd v Flegeltaub [2000] VSCA 180; 2 VR 276 at [27].
3. It is not the Court's role to assess the fairness or reasonableness of the trustee's decision. However, in some cases the trustee's discretion is so extreme and without any justification that it is described as 'grotesquely unreasonable', in which case the decision itself may form part of the evidence to prove the discretion was not properly exercised: Wareham v Marsella (2020) 61 VR 262; [2020] VSCA 92 at [95]; Owies v JJE Nominees Pty Ltd [2022] VSCA 142 at [126], [129].
4. Neither the legislation nor the case law imposes an obligation to consider a dependent in priority to the estate. Whether a trustee should give preference to a dependent of the deceased, as compared to the estate of the deceased, is a matter that depends on the particular circumstances which confront the trustee, including the terms of the trust deed: Wan v BT Funds Management Ltd [2022] FCA 302 at [110].
5. Gainer was not required to provide reasons for its decision: Karger v Paul [1984] VR 161; Maciejewski v Telstra Super Pty Ltd [1999] NSWSC 341 at [13] (Windeyer J). Nor does non-disclosure of the trustee's reasons mean that the exercise of its discretion cannot be reviewed. As explained in Karger v Paul at 164: "… the validity of the trustees' reasons will be examined and reviewed if the trustees choose to state their reasons for the exercise of their discretion. … [otherwise] … it is open to the Court to examine the evidence to decide whether there has been a failure by the trustees to exercise the discretion in good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred. As part of the process of, and solely for the purpose of, ascertaining whether there has been any such failure, it is relevant to look at evidence of the inquiries which were made by the trustees, the information they had and the reasons for, and manner of, their exercising their discretion… In short, the Court examines whether the discretion was exercised, not how the discretion was exercised."
6. The extent of a trustee's duty to properly inform itself of the facts in order to give real and genuine consideration to the exercise of discretion depends on the particular circumstances, including the nature of the trust: Owies v JJE Nominees Pty Ltd [2022] VSCA 142 at [93]. The duty of trustees to properly inform themselves is more intense in superannuation funds, compared to, for example, discretionary trusts with a broad class of beneficiaries: Finch v Telstra Super Pty Ltd [2010] HCA 36, (2010) 242 CLR 254 at [66]. In Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601, Young J noted that at 605: "Very often if a trustee and its officers have acted fairly and conscientiously they will have ensured that sufficient material is before them, so that they can make a decision… If the plaintiff has not supplied sufficient material then, if that is necessary to make a proper decision, it has to be obtained somehow or other. One cannot merely dismiss the plaintiff's claim out of hand."
7. Mr Bone's submission that the trustee's position was "analogous" to Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 was a little harsh, including relying on Young J's statement that "courts are not fooled by this sort of tactic". His Honour there observed that the case was poorly presented: "I have seldom seen a case so badly presented by the lawyers for the [trustee] … the slackness had extended to such an extent that not even the original exhibits were available to the court": at 602. The only evidence of the trustee's decision was a "one-liner in an extract from a minute" and, of the 200-pages that were before the trustee for consideration, there was "not the slightest bit of evidence as to which, if any, of those pieces of paper were actually considered": at 602. Young J observed, "Although the Court will not interfere with the proper discretion of trustees the Court will also not allow people … using their power under a trust deed to deny the beneficiaries rights by incompetence or inaction". That is not analogous to this case.
8. There is evidence of the steps that Gainer took to properly exercise its discretion, including obtaining legal advice to understand and comply with its obligations and the terms of the trust Deed in exercising its discretion, contacting eligible recipients and seeking full information about their circumstances for consideration in exercising its discretion. There is nothing to suggest that the trustee has not acted in accordance with its obligations. There does not appear to be any foundation for an assertion that there was an improper exercise of discretion or that the trustee's discretion has miscarried in some way. Mr Heesh's timesheets indicate that he turned his mind to this decision repeatedly and, indeed, appears to have agonised in coming to the proposed decision. The trustee has evidently given "real and genuine consideration" to the decision.
9. Mr Bone's allegation that Mr Heesh and Gainer lacked independence in the decision-making process is a serious allegation put at a level of generality and unsupported by the affidavit or documentary evidence on this application. Gainer did not have an obligation to notify Mr Bone, nor work with Mr Bone, to write to the Commissioner of Taxation. Writing jointly with NSWTG does not demonstrate collusion or lack of independence in making the proposed decision as to payment of the death benefit. Although Mr Heesh informed NSWTG of the non-compliance issue and worked with NSWTG to resolve that non-compliance, there is no suggestion in the contemporaneous material that Mr Heesh has done anything other than turn his mind to the decision in respect of the death benefit conscientiously. The only advice Mr Heesh has taken on this issue - repeatedly - is from Gainer's solicitor, not NSWTG. Mr Heesh appears, from his timesheets, to have attended to this task diligently.
10. As I understand it, Mr Bone's third submissions is, essentially, that if the whole of the death benefit is paid to him, then no tax will be paid. That may well be right. But that is not, of itself, a good reason for the trustee not to divide the death benefit between Mr Bone and the estate, even if it means that some tax will need to be paid. I reject Mr Bone's submission that the trustee has not given real and genuine consideration to its decision in this regard, where it is apparent from Mr Heesh's timesheets that he has turned his mind to the tax implications of the proposed decision, including the implications for Mr Bone. The trustee would be justified in exercising its power contained with the Rules to pay the death benefit as proposed as to 1/3 to Mr Bone and 2/3 to the estate of Ms Thelen.

DEFENDING THE REMOVAL PROCEEDINGS

1. The trustee seeks advice as to whether it would be justified in defending the removal proceedings and filing a cross-claim if necessary. The trustee submitted that the removal proceedings had not progressed despite numerous appearances before the Court. There had been repeated adjournments at the request of Mr Bone and repeated non-compliance with Court orders by him. The summons, and draft amended summons, did not particularise the allegations against Gainer; the case against it is not known, despite repeated requests for particulars or for the matter to proceed by way of pleadings. It was not until being served with the submissions filed on behalf of Mr Bone in these proceedings that his allegations against Gainer were somewhat articulated. Mr Bone's overarching concern appeared to be that Gainer was not intending to pay the death benefit to him in its entirety. The commencement of the removal proceedings was premature, given the process Gainer had notified it intended to undertake regarding payment of the death benefit. The case also appeared to be without a proper basis.
2. Mr Bone submitted that it was not appropriate to give advice that the trustee should defend the removal proceedings, as the interests of the trust as a whole are not significantly affected by the identity of the trustee: Re Application of Uncle's Joint Pty Ltd [2014] NSWSC 321 at [30] (Brereton J). There are other available contradictors on such an application. The Fund should not be exposed to the costs of the trustee seeking to stay in office.
3. Further, Mr Bone submitted that, once these proceedings are resolved, there are two possibilities. If Gainer is successful, it is likely to make the proposed distribution. Subject to any appeal, there may then be little point in seeking to remove Gainer as trustee of the Fund. If Gainer is not successful, Gainer will be required to reconsider its position as trustee and in respect of the distribution of the death benefit. NSWTG will be required to consider whether it should take Gainer's place as trustee of the Fund. If neither party changes their approach, it will likely be necessary for Mr Bone to take further steps in the removal proceedings.
4. Mr Bone submitted that it was not possible to predict either of these things, where the removal proceedings were at an early stage. The statement of claim had not been prepared. It was not possible for the Court to give any robust consideration to the merits or otherwise of Gainer's conduct of those proceedings. It would be premature for the Court to advise Gainer to defend the removal proceedings. Rather, no judicial advice should be provided now. Instead, after these proceedings are resolved, the parties will be able to consider whether and how the removal proceedings are to continue, based on Gainer and NSWTG's proposed course. Gainer can then revisit whether any judicial advice is required. There is also no basis upon which the Court could assess any proposed cross-claim by Gainer. Should the Court wish to provide Gainer with judicial advice in respect of the removal proceedings, that advice should be limited to whether to prepare and file a defence in those proceedings. To go further than that, at this stage, would be an exercise in speculation. A staged approach is consistent with authority: AMP Capital Investors Ltd as Responsible Entity for KSC Trust [2010] NSWSC 1259; Perpetual Investment Management Ltd as Responsible Entity for 10 Schemes listed in the Summons [2014] NSWSC 784.
5. NSWTG made no submissions on this issue.
6. I agree with Mr Bone that the result of this judicial advice application will have implications for whether the removal proceedings should be continued or change direction. I also agree with the trustee that the way forward as suggested by Mr Bone may lead to further costs being incurred in both proceedings, with Gainer having uncertainty as to how its costs will be paid, and a further judicial advice application needing to be brought.
7. Whilst I accept that a trustee may be agnostic to the identity of the trustee for a Fund, the position here is different where Mr Bone seeks to impugn the trustee's conduct. A trustee may be less agnostic to the relief sought by Mr Bone in such circumstances, as Brereton J acknowledged in the very passage relied on by Mr Bone in Re Application of Uncle's Joint Pty Ltd at [30].
8. I am also concerned that Mr Bone has commenced but failed to prosecute the removal proceedings and nonetheless repeated his serious allegations concerning the trustee and NSWTG in these proceedings. I do not think the trustee should be left in an uncertain position as to what it ought do in relation to the removal proceedings, should Mr Bone decide to comply with the orders of the Court and file a pleading. Counsel's opinion was that the Court should advise that Gainer is justified in defending those proceedings, including taking such steps as may be necessary, including the filing of a cross-claim, if necessary, and that its costs incurred in doing so be paid from the Fund. There was no indication of what that cross-claim might be. Whilst I am concerned to expose the Fund to depletion by the costs of an application for further judicial advice, I think it would be prudent to seek such advice before embarking on a cross-claim. I so advise.

VARYING THE RULES OF THE FUND

1. Rule 24.1 allows the Rules to be varied with any such variation, change, deletion, addition or amendment to the Rules to strictly adhere to the Superannuation Laws and the Fund retaining its Complying SMSF status. The trustee asked whether it would be justified in exercising its power in r 24 to delete r 14.2 and r 16.7.
2. Rule 14.2 provides: The Trustee must not to be paid or otherwise receive any remuneration for acting or carrying out its responsibilities as Trustee of the Fund unless otherwise permitted under the Superannuation Laws and/or any determination by the Regulator.
3. As to r 14.2, under s 17A(2)(d) of the SIS Act, for a fund to meet the conditions of a self-managed superannuation fund, '… no director of the body corporate receives any remuneration from the fund or from any person (including the body corporate) for any duties or services performed by the director in relation to the fund.' Section 17B of the SIS Act contains an exception to para 2(d), where a director holds professional qualifications and is undertaking work for the Fund in their professional capacity. Counsel for the trustee considered that, having regard to the usual scope of work Mr Heesh would carry out in his role as a liquidator, accountant and director and the letter from the Commissioner, it is likely that Mr Heesh can be paid remuneration for all his time because this is either permitted by the exception in s 17B of the SIS Act or permitted by the Commissioner in its Letter of Indemnity dated 29 November 2023. It was proposed that, for certainty, r 14.2 should be deleted so that it removes the prohibition in the Rules.
4. Counsel for the trustee was of the opinion that, where the Fund has no surviving members and the Letter of Indemnity imposes an obligation and a time limit on the winding up of the fund, the risk of permanent breach of the superannuation laws is very low. On balance, in light of the Letter of Indemnity, the Court should advise Gainer that it is justified in making the amendment as proposed to delete r 14.2.
5. Rule 16.7 further provides: Subject to the Superannuation Laws and despite Rule 16.4, at any Trustee Meeting dealing with a deceased Member's Death Benefits or a Member's Incapacity Superannuation Benefits only the Member's Legal Personal Representatives or Member whilst alive and legally capable and competent may vote on any resolution dealing with the deceased or incapacitated Member's Superannuation Interest or Superannuation Benefits.
6. As to r 16.7, Ms Thelen's legal personal representative is not a trustee or a director of the corporate trustee. Counsel for the trustee was of the opinion r 16.7 was not appropriate or necessary in the circumstances and should be deleted to allow the decision as to payment of the death benefit to be finalised.
7. NSWTG does not agree with the former amendment but agrees with the latter. NSWTG submitted that deleting r 14.2 would cause the Fund to be non-compliant with the criteria for a SMSF under s 17A(2) of the SIS Act, create a risk that the Fund will lose its concessional tax treatment and place Gainer in breach of cl 14.1 of the Fund Rules. There was also some risk that such non-compliance could jeopardise Gainer's ability to pay the death benefit, as the powers in cll 22.2(3) and 22.6 of the Rules to pay Superannuation Benefits when a member of the Fund dies are qualified by the words "Subject to the Superannuation Laws and the Fund retaining its Complying SMSF status …".
8. NSWTG submitted that this position was not altered by the fact that NSWTG had received a letter of indemnity from the ATO in relation to a separate breach of s 17A of the SIS Act, which will remain operative until 29 November 2024. That letter gives a commitment not to pursue NSWTG (or "any party that is lawfully authorised by [NSWTG] to administer the fund") for any "continuing" breaches of s 17A - which clearly refers back to the particular breaches of s 17A that NSWTG and Gainer jointly notified to the ATO in their letter of 20 October 2023. While the matter of Mr Heesh's remuneration was raised in that letter, the advice sought by the trustee went beyond what was notified to the ATO. The non-compliance notified to the ATO did not include any proposal to amend the Rules to place the Fund in permanent breach of s 17A of the SIS Act. Even if the ATO's indemnity letter could be construed as a (short term) commitment to refrain from issuing a notice of non-compliance to the Fund in circumstances where Gainer took steps to facilitate the payment of remuneration to itself and/or Mr Heesh, the Court should not approve a proposal by a trustee to create serious compliance risks for the Fund in the form of inconsistencies between the Rules and the SIS Act, and within the Rules themselves.
9. Mr Bone submitted that the Court should not provide the advice sought to allow Mr Heesh to be remunerated. The SIS Act prohibits the remuneration of directors of SMSF trustees: SIS Act, s 17A(2)(d). Gainer's proposed amendment of the Rules of the Fund did not address non-compliance with the SIS Act. NSWTG should accept its role as trustee of the Fund and then seeks to agree with Mr Bone (as the only other interested party) on an appropriate independent decision maker. That party could then make a decision about the distribution. The parties could then agree an appropriate amendment of the Rules and jointly approach the ATO in respect of SIS Act non-compliance if necessary. Mr Bone submitted that the reasons for deleting r 16.7 were not clear. Nor was it clear how the Trustee proposed that the Rule would work in circumstances where there was, currently, one corporate trustee.

Consideration

1. Whilst the course proposed by the trustee is pragmatic, I consider that the concerns expressed by NSWTG and Mr Bone in respect of the deletion of r 14.2 are well-founded. I do not think that the Court should advise a trustee to embark on a course which will give rise to a new non-compliance with the SMSF rules. The trustee would be justified in deleting r 16.7 to permit it to make a decision to distribute the death benefit without further delay. I so advise.

REMUNERATION AND COSTS AND EXPENSES INCURRED

1. Gainer seeks an order from the Court that it would be justified in paying Mr Heesh's fees for all work completed in relation to the administration of the Fund, and for paying all costs and expenses incurred by it on behalf of, or in connection with the Fund from the Fund.
2. On 10 July 2024, Mr Heesh produced his timesheet for tasks attended to from 1 June 2022 on. His fees are $87,800 plus GST. Mr Heesh had then spent 219.5 hours dealing with the administration of the Fund. He sought remuneration of $96,580 for work completed to date, plus remuneration for anticipated work required to defend the removal proceedings, liaise with Gainer's solicitors to resolve to pay the death benefit in accordance with the trustee's proposed decision if the Court advised that Gainer was justified in making that decision, or to take any additional steps that may be required to exercise the trustee's discretion. In addition, it would be necessary to liquidate the Fund's assets and pay any liabilities, including tax liabilities, to enable the death benefit payment to be paid and then wind up the trust.
3. Counsel for the trustee was of the opinion that s 17A(2)(c) of the SIS Act provides that the director cannot receive remuneration (subject to the exception in s 17B) from the Fund or any person. It was arguable that the work Mr Heesh has carried out falls within the exception allowed by s 17B(2) of the SIS Act, and can be remunerated from the Fund. In light of the scope of work that Mr Heesh would usually carry out in the ordinary course of his business, the Letter of Indemnity and the proposed variation to the rules, it was opined that there were no grounds for prohibiting Mr Heesh from being remunerated for the work he has done in his appointed role. It was further opined that the Court should advise that Gainer is justified in paying Mr Heesh's fees for work completed by Mr Heesh in relation to the administration of the Fund from the assets of the Fund and in paying all costs and expenses incurred by Gainer on behalf of or in connection with the Fund from the assets in the Fund such as accountant's fees, legal fees, and valuation fees.
4. Whilst NSWTG did not cavil with Mr Heesh's fees, it submitted that not all of those fees could be paid out of the Fund. Insofar as Mr Heesh has performed work for the Fund in his capacity as an appointed director of Gainer, he cannot be paid from the assets of the Fund: cl 14.2, Rules; s 17A(2)(d), SIS Act. However, he can be paid for this work, done at NSWTG's request, from the assets of the "Estate trust" created by either the 2021 Will or the 2019 Will and comprising the property of the Estate that NSWTG is charged with administering. NSWTG has a duty to get in the property of the Estate, which includes such part of the Fund to which the Estate is entitled. Ensuring the proper administration of the Fund - by appointing a director to its corporate trustee who can manage the Fund's business - is conduct that ultimately effectuates and enables the proper administration of the Estate, and the expenses associated with that are thus incidental to the proper performance of NSWTG's duties as interim administrator: New South Wales Institution for the Deaf, Dumb & the Blind (NSW) v Shelly (1917) 23 CLR 351 at 355, Re Stone; Read v Dubua (1936) 36 SR (NSW) 508 at 524; s 59(4) of the Trustee Act; cl 6 of the 2021 Will and the 2019 Will.
5. NSWTG submitted that, insofar as Mr Heesh has performed duties or services for the Fund other than in his capacity as director of Gainer, and has done so in the ordinary course of the business for which he is qualified, and has charged arms-length remuneration for that, he can be paid that remuneration from the property of the Fund: cll 14.2 and 15.2(a), (o) and (p), Rules; s 17B(2), SIS Act. Such an approach was taken in Re Application of Ellasil [2023] VSC 69 at [136], [149]-[151] (McMillan J). NSWTG submitted that it would be necessary to allocate each line item of Mr Heesh's charges (as reflected in his time log) to either work as a director or otherwise, to ensure that the remuneration is paid from the correct trust. Mr Heesh was best placed to complete that exercise. NSWTG prepared a suggested allocation of Mr Heesh's time entries based on his narrations, being $31,900 as a director and $64,680 for professional service.
6. Mr Bone submitted that NSWTG had not paid Mr Heesh for his work, including because it was aware that a director of a SMSF cannot be remunerated for their work. This was said to be a matter that was at NSWTG's and Mr Heesh's risk. That the ATO will not issue a notice of non-compliance is not a reason for the Court to authorise Mr Heesh's remuneration. The Court should not visit the costs of the fundamentally flawed process followed by NSWTG and Mr Heesh on the Fund. The burden of Mr Heesh's fees should be borne by NSWTG or Mr Heesh. Nor should it be accepted that Mr Heesh's work fell under s 17B(2) as services other than in his capacity as director of Gainer. The tasks described in his timesheet were those of a director.

Consideration

1. The relevant provisions are reproduced at [27]-[29]. I have declined to advise that the trustee would be justified in deleting r 14.2. Nor is it proposed to pay Gainer or provide it with any remuneration for carrying its responsibilities as trustee. Rather it is proposed to pay a disbursement of the company, being fees charged by Mr Heesh. The problem is not r 14.2, but the criteria for concessional income tax treatment in s 17A(2)(d) of the SIS Act; as a director of Gainer, Mr Heesh may not receive any remuneration from the Fund or "any person" for services performed in relation to the Fund. The language is "broad": Ellasil at [136]. I consider that the reference to "any person" encompasses NSWTG. As such, I agree with the trustee's counsel that NSWTG's proposal - that the Estate pay Mr Heesh for his work as a director - does not resolve the compliance risk.
2. Further, the delineation required by her Honour in Ellasil was because the director in question was a solicitor. Her Honour was of the view that the fees charged by the solicitor for work done falling within the exception should not be charged at the same rate for his work as a director. Her Honour was also concerned that some of the legal work was undertaken for the trustee of the SMSF while other legal work was done by the solicitor in his capacity as the executor of the estate of the deceased member of the fund. The delineation was not required in order to ascertain which work fell within the exception and which did not.
3. Returning to Gainer, as McMillan J observed in Ellasil, the explanatory memorandum in respect of this criteria states that the purpose of the restriction on remuneration is to "ensure that true remuneration is not used by trustees to obtain access to their superannuation benefits before they are eligible": at [136]. The payment of Mr Heesh for his professional services is not the mischief to which the statute is directed.
4. The exception in s 17B(2) of the SIS Act does apply, at least to some of Mr Heesh's work. He has undertaken tasks in connection with Gainer's role of trustee. He is appropriately qualified and has performed those services in the ordinary course of his business. He is charging a reduced fee to NSWTG. Having reviewed Mr Heesh's timesheets, the bulk of his work appears to fall within the exception. This is confirmed by NSWTG's analysis, which puts roughly two-thirds of Mr Heesh's fees into that category. There remains, however, a portion of Mr Heesh's fees for work in his capacity as a director of Gainer which cannot be paid, either by the Fund or, I think, by the Estate without making the Fund non-compliant.
5. The letter sent by NSWTG and Gainer to the ATO made plain that one of the problems resulting from NSWTG's appointment of Mr Heesh was that he could not be remunerated without breaching the SIS Act, save where he provided services other than in his capacity as a director. NSWTG submitted to the ATO that it would not be possible to appoint a person qualified to act as a director without that person expecting to be paid. The Commissioner was asked to exercise its discretion not to issue a notice of non-compliance, in which event, the trustee proposed to finalise the outstanding matters for the Fund and wind it up. The letter of indemnity issued by the ATO agreed to refrain from issuing a notice of non-compliance.
6. That is, NSWTG and Gainer have made plain that it is proposed to pay Mr Heesh and the ATO has made plain that it will take no action in this regard. It is in the interests of the Fund that Mr Heesh should complete his duties, for which he is entitled to expect payment. I do not think there is anything to be gained by Mr Heesh delineating the work undertaken in the manner indicated by NSWTG, as the terms of the statute are sufficiently broad that payment for his work as a director of Gainer from the Estate will also make the Fund non-compliant. The trustee has, however, taken reasonable steps to ensure that the non-compliance will not result in the loss of concessional tax treatment. Having done so, I consider that the trustee would be justified in paying Mr Heesh from the Fund. I so advise.
7. I note that the trustee has also incurred other expenses in the course of its work, including a recent valuation obtained in respect of the commercial property owned by the Fund. These costs and expenses should also be paid from the Fund.

RIGHT TO AN INDEMNITY

1. Finally, the trustee seeks advice as to whether it would be justified in realising its right to an indemnity out of the assets of the Fund. Rule 15.4 provides: Subject to the Superannuation Laws and the Fund retaining its Complying SMSF status the Trustee is to be indemnified from the Assets of the Fund for any loss, damages or award against the Trustee arising from their role as Trustee of the Fund.
2. Gainer was made aware of the risk that, because the appointment of Mr Heesh meant the Fund ceased to fulfil the conditions of a SMSF, the Commissioner could issue the Fund with a notice of non-compliance. The consequences could be that the Fund ceased to receive concessional tax treatment. Gainer has not been issued a notice of non-compliance. While the Letter of Indemnity misdescribes of the roles of NSWTG and Gainer in operating the Fund, the Commissioner accepted the position taken by NSWTG and Gainer. Counsel for the trustee was of the opinion that, noting the steps taken by Gainer to regularise the position, the Court should advise that Gainer is justified in realising its indemnity from the assets of the Fund.
3. Mr Bone submitted that advice should not be given in the abstract. The trustee, whether Gainer or another entity, had a right of indemnity from the Fund. Should the trustee seek approval of particular costs by way of judicial advice, it should approach the Court with evidence in respect of those costs. It cannot do so in a blanket matter.
4. It follows from the advice already given that I consider that the trustee is entitled to be indemnified from the assets of the Fund. As s 63(2) of the Trustee Act makes plain, this advice is given on the basis of the facts disclosed on this application, including the non-compliance of the Fund as a consequence of the appointment of Mr Heesh as a director Gainer. If the trustee needs to be indemnified from the Fund in respect of an issue which was not disclosed, then a further application for judicial advice will need to be brought.

ORDERS

1. The trustee seeks an order that its costs of these proceedings be paid from the Fund on an indemnity basis. NSWTG also sought an order that its costs of appearing in these proceedings be paid on an indemnity basis out of the Fund or, alternatively, out of the Estate under s 59(4) of the Trustee Act. Mr Bone submitted that his costs should be paid from the Fund, while the other parties' costs should not.
2. I agree that the trustee should have its costs paid from the Fund. It is more appropriate that NSWTG have its costs of these proceedings paid out of the Estate. I am not satisfied that Mr Bone should have his costs, where the issues raised by him were not accepted. For these reasons I make the following orders: 1. Order pursuant to s 63 of the Trustee Act 1925 (NSW) that the plaintiff in its capacity as trustee of the Gainer Associates Superannuation Fund (the Fund) would be justified in: 1. exercising its power contained in r 22.1 of the rules of the Fund (Rules) as set out in the Deed of Variation dated 31 January 2008 (Deed) to pay or apply the death benefit payable in relation to Gail Thelen (Member): 1. one-third to Steven Bone; and 2. two-thirds to NSW Trustee and Guardian as administrator of the deceased Member's estate. 1. exercising its power contained in r 24.1 of the Rules to vary the rules of the Fund to delete r 16.7 of the rules of the Fund; 2. paying fees issued by TPH Advisory for all work completed by Timothy Heesh in relation to the administration of the Fund; 3. paying all costs and expenses incurred by the plaintiff on behalf of or in connection with the Fund from the assets of the Fund; 4. realising its right to an indemnity out of the assets of the Fund; 5. in relation to proceedings 2024/56345 (removal proceedings): 1. defending the claims in prayers 1 to 9 of the removal proceedings; and 2. paying its reasonable costs incurred in defending those claims out of the assets of the Fund. 1. Grant liberty to apply to seek further advice as to whether the plaintiff would be justified in filing a cross-claim in the removal proceedings and paying its reasonable costs incurred in prosecuting that cross-claim out of the assets of the Fund. 2. Order that the plaintiff's costs of and incidental to these proceedings be paid from the assets of the Fund on an indemnity basis. 3. Order that NSW Trustee and Guardian's costs of these proceedings be paid from the Estate of the late Gail Thelen on an indemnity basis. 4. Parties to notify any errors or omissions within 7 days.

Amendments 13 September 2024 - Coversheet: amendment to Representations 13 September 2024 - Headnote: Typographical amendment [21]: under r.29(a) of the "Fund" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2024