Mercy Super v Attorney-General for the State of Queensland & Attorney-General for the State of Victoria [2022] QSC 221

Appeared for the Mercy Super Trustee, instructed by Ashurst.

Successful application for declaratory relief and judicial advice.

STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – APPROPRIATE FORM OF RELIEF – DISCRETION OF COURT – where the applicants are both trustees for registrable superannuation entities, Mercy Super and the HESTA Superannuation Fund – where the applicants propose to effect a successor fund transfer of the members of Mercy Super Fund and their assets to the HESTA Superannuation Fund – where the proposed successor fund transfer involves the transfer of Mercy Super members, their benefits and matching assets to HESTA – where the transferred assets are not impressed with the first trust, but rather a new trust defined and constituted by the terms of the successor fund transfer deed and the governing rules of the successor fund – where neither trustee relies on a power of appointment in the transaction documents – where s. 442F of the Criminal Code (Qld) and s. 180 of the Crimes Act 1958 (Vic) prohibit secret commissions to trustees in return for substituted appointment – where the applicants seek a declaration that the proposed successor fund transfer is not a substituted appointment – where the applicants argue that the proposed successor fund transfer does not involve the replacement or substitution of a trustee – where the parties and APRA did not submit that the Court lacked jurisdiction to make the declaration sought – whether a declaration should be made that the proposed successor fund transfer is not a substituted appointment for the purposes of s. 442F of the Criminal Code (Qld) and s. 180 of the Crimes Act 1958 (Vic)

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – where the applicants alternatively seek assent or directions of the Court in respect of the proposed successor funds transfer – whether the Court should direct that the applicants are justified in effecting the proposed successor funds transfer

Judgment:

Media coverage:

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