Power to Consent

The power to amend the terms of an occupational superannuation trust will often require the Trustee or Trustees to consent to an amendment proposed by the sponsoring Employer (who is not a fiduciary).

That consent is then a material and important element in the execution of the power and its requirement must be strictly observed. It is a matter of substance and not form {Hutton v Simpson (1716) 2 Vern. 722; Hawkins v Kemp (1803) 3 East. 410}.

The Court will interfere with the power of consent is exercised by someone in a fiduciary position and if that person fails to give due and proper consideration to its exercise {Gilbey v Rush [1906] 1 Gh 11; Klug v Klug [1918] 2 Ch 67; Turner v Turner [1984] Ch 100; Re Hay’s Settlement Trusts [1982] 1 WRL 202 at 209-210}.

The Court will also interfere where a power of consent is exercised in bad faith or for an improper purpose {Dowager Duchess of Sutherland v Duke of Sutherland [1893] 3 Ch 169.

A power to consent, like any other power – and whether it is a fiduciary power or not – may be subject to some express restriction or constraint, in which case such restriction or constraint must be observed and will be enforceable according to its terms {Refer to Re Courage Group’s Pension Schemes [1987] 1 WLR 495}.

A purported Trustee who has not been lawfully appointed to the office of trustee (a Trustee de son tort) is unable to exercise any powers provided by the trust instrument, including a power of consent {Jasmine Trustees Ltd v Wells & Hind [2007] 3 WLR 810, [2007] 1 All ER 1142, [2007] EWHC 38 (Ch); Meier v Dorzan Pty Limited & Anor [2010] NSWSC 664}.

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