They held the assets and filed the returns for 30 years. Nobody could produce the deed appointing them.
Your client has been the trustee of a superannuation fund for 30 years. They hold the assets. They file the returns. Then someone asks - where is the deed appointing you as trustee?
They cannot find it. Application by RPW Services Pty Ltd [2026] NSWSC 363.
The facts
The Riverina Plaster Works Superannuation Fund was established by trust deed in 1979 [1]. The original trustee was a company that also operated the business [5]. In 1981, a second company took over the business [22]. In 1994, the trust deed was replaced and RPW Services was appointed trustee [9, 13].
RPW Services administered the fund for over 30 years. But no document proved that the second company had ever been validly appointed as trustee and employer to replace the original [18]. Every step from 1994 onwards - the new deed, the trustee appointment, every amendment since - depended on that missing link.
What the Court did
Parker J declined to make formal appointment orders under ss 70 and 71 of the Trustee Act 1925 (NSW) [28]. Three reasons.
First, if the second company had been validly appointed before 1994, the orders were unnecessary. Conditional orders would not resolve the question [30].
Second, if the original company was still the trustee when it was deregistered, its property passed to the Commonwealth under s 601AD(1A) of the Corporations Act 2001 (Cth). The Court could not alter those property rights without hearing from the Commonwealth [31].
Third, the evidence justified an inference of valid appointment, supported by the presumption of regularity, but it was not conclusive [26, 32].
Instead, the Court gave judicial advice under s 63 of the Trustee Act. RPW Services was justified in continuing to administer the fund on its current basis [38]. The Court noted that even if the 1994 appointment was invalid, RPW Services would be a trustee de son tort, a constructive trust impressed on the assets it held [37].
The practitioner takeaway
The Court saved this fund. But read the judgment carefully. Parker J pointed out that the evidence of searches for the missing documents was “in general terms” and did not demonstrate exhaustive enquiry [27]. The second company’s minute books were not produced. No property register searches were conducted. The Court gave the advice but left the door open for the issue to be revisited.
If your client is the trustee of a superannuation fund, check the document chain now. Original deed. Every amending deed. Every instrument of appointment. If there is a gap, close it while the parties are alive and the companies are still on the register.
General information only. This note was accurate when written. The law may have changed since and the note is not updated. It is not legal or tax advice, does not take account of your circumstances and must not be relied upon as a substitute for advice on your own matter. If the issue is live for you or your client, email arda@nortonquaytaxlaw.com.au for advice on the current position.