(1) Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release, or disposition, or any purchase, investment, acquisition, expenditure, or transaction, is in the opinion of the Court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the instrument, if any, creating the trust, or by law, the Court:
(a) may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions, including adjustment of the respective rights of the beneficiaries, as the Court may think fit, …"
19 The payment of remuneration to the Plaintiff in the present case would be an "expenditure" for the purposes of the section. There is no power under the Trust Deed to make such an expenditure, so that the section would, prima facie, apply. But this case is a little more complicated in that there is, in Clause 3.23 of the Trust Deed, an express prohibition against the Plaintiff receiving remuneration. To authorise remuneration to be paid under s 81 also requires the amendment of the Trust Deed by removal of clause 3.23, otherwise there will be a conflict between the Trust Deed and the power given to the Plaintiff by the Court. Recourse to s 81 is, therefore, only a partial solution to the Plaintiff's problem.
20 Removal of Clause 3.23 may be effected by the trustee in exercise of its power of amendment under Clause 10.1. Insertion in the Trust Deed of an express right of the trustee to receive remuneration may be effected by the same means. The "Principal Employer", as defined in Clause 10.1, has approved such amendments and the Plaintiff is satisfied that the value of Members' benefits would not be reduced by the amendments. Amendment to the trust Deed under clause 10.1, therefore, provides a complete means of securing the Plaintiff's objective.
21 The difficulty for the Plaintiff is, of course, that exercise of the power of amendment contained in the Trust Deed so as to provide for its own remuneration will give rise, prima facie, to a conflict of interest and duty. It is in the interest of the Plaintiff and its directors to receive remuneration for their services. It is the duty of the Plaintiff as trustee to administer Cuesuper with as little expense and as much profit as possible. Of course, as the Plaintiff would say - and I would agree - the present case illustrates the adage "penny wise, pound foolish": the failure to pay a relatively small remuneration in order to retain a professional and committed Board may result in less skilled administration of Cuesuper and a poorer return to its members.
22 To remove any difficulty about the Plaintiff exercising its power of amendment of the Trust Deed in a situation of conflict of interest and duty, it seeks a direction of the Court that it is justified in making the amendments.
23 As will have emerged from the foregoing discussion, I have no hesitation in giving such a direction. For the same reasons as Williams J gave in Queensland Coal and Oil Shale Mining Industry, I am satisfied that the proper administration of Cuesuper requires that the Plaintiff be appropriately remunerated.
24 The Plaintiff has sought professional advice about the level of remuneration for directors, by reference to industry standards. The amounts suggested by the Plaintiff as a result of those enquiries seem to me to be fair and reasonable.
25 A draft Deed of Amendment has been prepared which the Plaintiff and the Principal Employer propose to execute if the Court gives the directions sought. The draft Deed will be marked as Exhibit P2. The terms of that Deed include the following:
"(b) The quantum of the amount payable to the Trustee (and the quantum of any amount payable to the directors of the Trustee) must be:
(i) determined by a decision of a majority of the directors (or if the Superannuation Law requires a decision to be determined by a greater number of directors that number) after receiving and having given due regard to independent expert remuneration advice as to the appropriate level of remuneration; and