Hill v. Zuda Pty Ltd as trustee for The Holly Superannuation Fund & Ors

Lower Court Judgment

23/04/2021 Supreme Court of Western Australia (Buss P, Murphy & Mitchell JJA)

[2021] WASCA 59

Catchwords

Superannuation – Self-managed superannuation fund (“SMSF”) – Binding death benefit nomination – Where reg 6.17A(4), (6) and (7) of Superannuation Industry (Supervision) Regulations 1994 (Cth), provided for requirements for validity of binding death benefit requirement in respect of superannuation funds – Where reg 6.17A authorised by multiple provisions, relevantly, ss 31, 55A and 59 of Superannuation Industry (Supervision) Act 1993 (Cth) – Where applicant child and dependant of deceased person – Where deceased person established SMSF with deceased person’s partner as sole members – Where cl 5 and 6 of SMSF trust deed made binding death benefit nomination, requiring trustee to distribute whole of deceased member’s balance to surviving member – Where applicant argued cl 5 and 6 of deed did not constitute valid binding death benefit notification due to non-compliance with reg 6.17A(6) and (7) of Regulations and claimed portion of deceased person’s account – Where claim dismissed and appeal to WA Court of Appeal dismissed – Whether reg 6.17A(4), (6) and (7)  of Regulations apply to SMSF.

Courts – Comity – Intermediate appellate courts – Where WA Court of Appeal held principle of comity required it to follow decision of SA Full Court in Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122 – Where SA Full Court held reg 6.17A did not apply to SMSF because s 59 of Act did not apply to SMSF but did not consider ss 33 or 55A – Whether intermediate appellate court bound to follow decision of other intermediate appellate court where no consideration of relevant aspect of legislation.