The Royal Commission into Misconduct
in the Banking, Superannuation and
Financial Services Industry
27 December 2017
Sent by Registered Mail - Article id: 517802408014 Received 7:38am Monday 8th Jan 2018
Peter O’Connor
s 47F
Attn: Ms Nicole Smith
Chair
NULIS Nominees (Australia) Ltd
PO Box 200
North Sydney, 2059
Dear Ms Smith
Re: Request for Fund Documents
I refer to an article by Richard Gluyas published in
The Australian (21-12-17) titled “
Bank inquiry’s
‘massive dragnet’”.
Richard writes:
“Royal commissioner Kenneth Hayne has cast a “
massive dragnet” over the financial services
industry, asking banks, insurance companies and superannuation funds to report all
misconduct cases and behaviour falling short of community expectations since 2008.
In the Royal Commission Terms of Reference “
misconduct” is defined to include conduct that:
(a) Constitutes an offence against a Commonwealth, State or Territory law, as in force at the time
of the alleged misconduct; or
(b) Is misleading, deceptive, or both; or
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(c) Is a breach of trust, break of duty or unconscionable conduct; or
(d) Breaches a professional standard or a recognised and widely adopted benchmark for
conduct.
Richard quotes a senior banker who described the request as “
a massive 10 year dragnet”.
“Everyone’s going to set the bar very low for pre-disclosure because they’ll want to avoid a
future situation where the royal commissioner’s all over them like a rash for holding back
information from the outset” he said.
Richard notes that Royal Commissioner Hayne has asked the companies to provide their
“
comprehensive” responses by 29 January 2018.
On 20 January 2014 a subsidiary company of the
National Australia Bank (
NAB) gained
administrative control of the Trust Estate of an occupational pension scheme established by a Trust
Deed executed on the 23 December 1913 in the State of South Australia. In 2014 this fund was
known as the
AusBev Superannuation Fund.
The existence of this Trust Deed is confirmed by the
Elder Smith & Co Ltd Provident Funds Act 1963 (SA).
Elder Smith & Co Limited was acquired by Elder Smith Goldsbrough Mort Ltd in 1963.
The value of the assets of the Trust Estate transferred to the control of PFS Nominees Pty Ltd {a
subsidiary company of
NAB}, on the 20 January 2014 was A
$ 443,207,841. You were the Chair of this
corporate trustee.
Superannuation funds are established as ‘
trusts’ because the laws of trust should protect the
entitlements of fund members and beneficiaries over a period that can last for many decades.
A ‘
trust’ can be defined as a set of legal obligation annexed to trust property which is enforceable by
a court with equitable jurisdiction.
Therefore the starting position is that the Trust Estate with a value of A
$ 443,207,841 on the 20
January 2014 has legal obligations impressed by the original Trust Deed dated 23 December 1913
and any lawful amendments that have been made over the last century to the provisions of this
original Trust deed.
I am a ‘
concerned person’ pursuant to
subsection 1017C(9) of the
Corporations Act 2001.
Request for a copy of the original Trust Deed
I am requesting a copy of the executed Trust Deed dated 23 December 1913 pursuant to
subsection
1017C(5) of the
Corporations Act 2001 and
Section 84B of the
Trustee Act 1936(SA)
If the original counterpart of the original Trust Deed has been lost and there is no copy of the
executed deed, then am requesting a copy of the Court Order that re-instates the terms of the
original Trust Deed based on extrinsic evidence held by the South Australian Attorney-General’s
Department.
Request for copies of the amending Deeds
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I am requesting a copy of the amending Deed {Deed of Variation} dated:
-
6 May 1958
This amending Deed amended the pension benefit formula for qualifying male fund members to
improve the pension entitle if a male fund member was retrenched before attaining the early
retirement age of 60.
This improved formula is included in
Regulation 29.
The provisions of the amending Deed dated 6 May 1958 are referenced in the Memorandum to Staff
dated 26 April 1965 [
Exhibit #1].
I am also requesting a copy of any executed and duty stamped amending Deed that purports to
delete or revoke
Regulation 29.
If there has been a purported transfer of legal obligations from the occupational pension scheme
established by the Trust Deed dated 23 December 1913 to the
Plum Superannuation Fund and/or
the
MLC Super Fund then I am requesting a copy of the amending Deeds that amended the Trust
Deeds of these other funds to incorporate and match the legal obligations of the fund established by
the Trust Deed dated 23 December 1913.
Yours Sincerely
Peter O’Connor
{
Postscript: A copy of this letter will be included in the submission to the Royal Commission
made on behalf of members and beneficiaries of the occupational pension scheme
established by the Trust Deed executed on the 23 December 1913 – a pension scheme that
was once known as the
Elders IXL Superannuation Fund}
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Exhibit #1
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