Letter to APRA from Nicholas Brookes - Re: Foster's Group Superannuation Fund

Phillip Sweeney made this Freedom of Information request to Australian Prudential Regulation Authority

Currently waiting for a response from Australian Prudential Regulation Authority, they must respond promptly and normally no later than (details).

From: Phillip Sweeney

Delivered

Dear Australian Prudential Regulation Authority,

In a letter dated 21 August 2009, Margaret O'Halloran, Fund Secretary of the Foster's Group Superannuation Fund made the following representation:

"We refer to your request for the Trust Deed in place at the time you joined Foster's
Group Superannuation Fund.

We have conducted an extensive search of the archives of the previous
administrators and lawyers to assist you. The earliest executed Trust Deed we have
located is dated 26 August 1986 and it contains the Rules of the Elders IXL
Superannuation Fund dated 19 Auguste 1985.

A copy is enclosed for your records"

The document dated 26 August 1986 could only at best be an Amending Deed, since this document states in the recitals at Recital A:"

"By a Deed made on the 23rd day of December 1913 a Company known as Elder Smith & Co Limited established a provident and guarantee fund which is now known as the Elders IXL Superannuation Fund (hereinafter called 'the Fund')"

Then in 2010, I wrote to APRA since it was a serious prudential issue if a regulated trustee was not in possession of the founding Trust Deed made on 23 December 1913.

The founding Trust Deed is evidence that a legally enforceable 'trust' has been established in the first place and also confirms if an amending power has been reserved in the founding trust deed.

If an amending power has been reserved then the founding Trust Deed will prescribe the party or parties on whom this amending power {Power of Amendment} has been conferred.

A Power of Consent to amend the terms of the trust may also be reserved in the founding Trust Deed. If so, the party or parties on whom the Power of Consent has been conferred would also be prescribed.

Unless a Power of Termination {or Power of Revocation} has also been reserved in the founding Trust Deed, the trust will be irrevocable once legally constituted.

APRA then wrote to the purported trustee seeking an explanation as to why the trustee was not in possession of the founding Trust Deed as represented by the Fund Secretary.

The documents I seek are:

(i) a copy of the letter provided to APRA by Nicholas Brookes, the then CEO of Corporate Combined Superannuation (CCSL Ltd) {RSE Licence L0000758}, the then purported corporate trustee of this regulated superannuation fund (R 1004830); and
(ii) copies of all the documents which were attached to this letter signed by Mr Brookes.

The search period is from 1 January 2010 to 31 December 2010.

Yours faithfully,

Phillip Sweeney

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From: Freedom of Information
Australian Prudential Regulation Authority


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Dear Mr Sweeney,

 

I acknowledge receipt of your FOI request dated 9 August 2019. We are
processing your request and will respond soon.

 

Kind regards

 

FOI OFFICER

T 02 9210 3000 | E [1][APRA request email]

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
1 Martin Place (Level 12), Sydney, NSW 2000
GPO Box 9836, Sydney, NSW 2001
T 02 9210 3000 | W [2]www.apra.gov.au

[3]Title: Australian Coat of Arms and APRA logo

 

 

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