The Law of Trusts

Many Superannuation Funds have an Employer-Sponsor and the Superannuation Fund will have a name similar to that of the Employer-Sponsor.

Some Funds are “stand alone” funds run by financial institutions with no “Employer-Sponsor”

One of the reason it is so easy to steal the money of Members of superannuation funds is that most Members have no understanding of the legal relationships between:

  • the Employer and the Employee
  • the Trustee and the Member or Beneficiary
  • The Employer and the Trustee

It is therefore easy to buff a Member or a Beneficiary about his or her legal rights and legal superannuation entitlements. The dishonest Trustee bluffs the Member or Beneficiary and if that Member or Beneficiary seeks redress then corrupt Public Servants abusing their public power also bluff that Member or Beneficiary.

Most Trustees are corporate Trustees with a Board of Directors. In the case of Employer-Sponsored Funds there must be an equal number of Employee-elected Directors and Employer-nominated Directors. There many or may not be an “independent” Director.

Now this might sound a good governance arrangement, however there is one problem.

The Employer-nominated Directors can fire the Employee-elected Directors and not the other way around.

Any Employee-elected Director who stands up to the Employer-nominated Directors is likely to be fired. Australian Guardians has on file case histories of this occurring.

Furthermore there are no qualifications requirement to be a Director of a Board that might be responsible for hundreds of millions of dollars or even billions of dollars, so many Trustee Directors have little or no legal knowledge themselves and so are reliant on the Trustee’s legal adviser to provide them with legal “advice“.

The corporate Trustee is supposed to be a separate and “independent” legal entity to the Employer-Sponsor, however this is basically a legal fiction if the Board of the Trustee has senior Executives from the company as Directors or Directors who act on their behalf.

The law of trusts requires the Trustee to act strictly in accordance with the Trust Deed and Rules and not to act “under the dictation” of the Employer-Sponsor.

However the reality is that many Government Regulated Superannuation Funds are effectively run “under the dictation” of the Employer-Sponsor and the Trust Deed and Governing Rules are to a large extent ignored.

That is why so many complaints made to the Superannuation Complaints Tribunal concern how defined benefit payments have been determined by the Trustee. In many cases the Employer’s Human Resources Department  just tells the Trustee how the benefits are to be determined so the Head of the Human Resources Department can claim a big bonus at the other employees’ expense.

However if a Trustee fails to act strictly in accordance with the Trust Deed and Governing Rules and Members are paid a lesser benefit (or are unlawfully thrown out of their fund), then the Trustee has committed a Breach of Trust and Members who are now underpaid Beneficiaries have a legal claim against the Trustee for a Breach of Trust.

“The basic right of a beneficiary is to have the trust duly administered in accordance with the provisions of the trust instrument, if any, and the general law”

–          Lord Browne-Wilkinson (Target Holdings and Redferns [1995] UKHL 10)

“The basic equitable principle applicable to breach of trust is that the beneficiary is
entitled to be compensated for any loss he would not have suffered but for the breach.”

–          Lord Browne-Wilkinson (Target Holdings and Redferns [1995] UKHL 10)

It is the objective of Australian Guardians to assist Members to obtain the necessary Trust Documents that will confirm these Breaches of Trust.

There should be many $ Billions in claims against dishonest Trustees for these Breaches of Trust, which to date have been concealed with the help of corrupt and incompetent Public Servants.

These claims should date back to at least 1992 when Superannuation was made compulsory for all working Australian by the Keating Government.

This policy itself was sound, however the system of Governance that was put in place to “safeguardother peoples’ money was fatally flawed.

If you become a Member of Australian Guardians some of these reclaimed monies could be yours.

Email or leave contact details below.

Membership is free.

Australian Guardians – Protecting your wealth when no one else will®


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