EXHIBIT 10.37
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DEED OF VARIATION
DEED dated 7 October 1998
BETWEEN BRL HARDY LIMITED ACN 008 273 907 of Reynell Road Reynella South
Australia ('PRINCIPAL EMPLOYER')
AND BRL HARDY SUPERANNUATION PTY LTD ACN 058 898 767 of Reynell
Road Reynella South Australia ('TRUSTEE')
RECITALS
A. By deed dated 1 July 1982 and made between Consolidated Co-operative
Wineries Limited of the one part and the then trustees of the other
part, Consolidated Co-operative Wineries Limited established the
Consolidated Co-operative Wineries Limited Employees' Superannuation
Fund ('FUND') upon the terms and conditions contained in that deed.
B. The Fund has since been known by a number of different names, but is now
known as the "BRL Hardy Superannuation Fund".
C. The Fund's deed has since been amended by further amending instruments
dated 6 June 1990, 31 March 1993 and 8 June 1994 (which together are
called 'GOVERNING RULES').
D. The Trustee is the current trustee of the Fund.
E. Clause 15 of the Governing Rules gives the Trustee the power to add to,
repeal, amend or alter all or any of the trusts and provisions contained
in the Governing Rules, but only with the consent of the Principal
Employer.
F. The Trustee has, with the consent of the Principal Employer, resolved to
amend the Governing Rules by rescinding the current operative provisions
of the Governing Rules and by replacing them with new operative
provisions in the manner contained in this Deed of Variation.
AGREEMENT
1. AMENDMENT
The Governing Rules are altered and modified by rescinding the current
operative provisions of the Governing Rules, namely clauses 1 to 30, and
by replacing them, with effect from 1 July 1998 ('RELEVANT DATE'), with
the clauses and the schedules which are contained in the annexure to this
Deed of Variation which is headed "New Provisions - BRL Hardy
Superannuation Fund" ('NEW PROVISIONS').
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2. MEMBERSHIP REQUIREMENTS
Any Member of the Fund as at the Relevant Date will be deemed to have
complied with any membership requirements contained in the New
Provisions, and will continue in the same category of membership as
immediately before the Relevant Date.
3. TRANSITIONAL PROVISIONS
3.1 As at the Relevant Date, each Member will have credited to his or her
Voluntary Contribution Account that part of the Fund which represents:
(a) the "Member's Accumulation" in accordance with the Governing Rules
in force as at the day before the Relevant Date; and
(b) any other voluntary contributions which the Member has made
personally to the Fund which are not reflected in the "Member's
Accumulation"; and
(c) any other amount or amounts which have been received by the Trustee
from another superannuation arrangement, approved deposit fund or
eligible rollover fund or from the issuer of some Annuity money or
assets in respect of the Member's interest in that superannuation
arrangement, approved deposit fund, eligible rollover fund or
Annuity.
3.2 As at the Relevant Date, each Category 5 Member will have credited to
his or her Compulsory Employer Contribution Account that part of the
Fund which represents the amount which the Member would have received as
a withdrawal benefit from the Former Fund under the governing rules of
the Former Fund had he or she left Service with his or her Employer on 1
July 1992 other than by reason of illness, injury or retrenchment, as
increased or decreased since 1 July 1992 in accordance with the Fund
Earning Rate of the Fund (or its equivalent) since that date.
4. ACKNOWLEDGMENT
The Trustee acknowledges that it holds and will continue to hold all
moneys, investments and policies of assurance (if any) comprising the
Fund on behalf of all of the Members of the Fund in accordance with the
provisions of this Deed of Variation or with the New Provisions.
5. NO NEW TRUST
Nothing contained in this Deed of Variation will be deemed to create a
new trust or to be a resettlement of the Fund.
6. CONSENT OF PRINCIPAL EMPLOYER
By signing this Deed of Variation, the Principal Employer consents to the
alterations and modifications made by it.
7. CONTINUED EFFECT
The Governing Rules, as amended previously and by this Deed of Variation,
will in all respects remain in full force and effect.
8. INTERPRETATION
Unless the context indicates a contrary intention, words and expressions
used in this Deed of Variation will have the meanings ascribed to them in
the New Provisions.
EXECUTED as a deed.
THE COMMON SEAL of BRL HARDY )
LIMITED is affixed in accordance with its )
articles of association in the presence of )
/s/ Stephen B. Millar /s/ John Whelan
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Director Director/Secretary
THE COMMON SEAL of BRL HARDY )
SUPERANNUATION PTY LTD is affixed )
in accordance with its articles of association )
in the presence of )
/s/ John Pendrigh /s/ John Whelan
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Director Director/Secretary
NEW PROVISIONS - BRL HARDY SUPERANNUATION FUND
1. INTERPRETATION
1.1 DEFINITIONS
Unless the context otherwise requires:
"ACCRUED BENEFIT MULTIPLE" means, in relation to each Member who is named
in the Second Schedule, the percentage set out next to his or her name in
that Schedule.
"ACT" means, as the context requires, any one or more of the SIS Act, the
Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the
SG Act, the Superannuation Contributions Tax (Assessment and Collection)
Act 1997, the Superannuation Entities (Taxation) Act 1987 and any
regulations made pursuant to any of those Acts.
"ACTUARY" means the actuary for the time being appointed pursuant to this
Deed.
"ANNUAL SALARY" means the annual rate of Salary of the Member, relating
to the relevant Review Date, as advised to the Trustee by the Employer
for the purposes of the Fund (which advice shall be conclusive evidence
of the amount of Annual Salary).
"ANNUITY" means an annuity which is an eligible annuity for the purposes
of Relevant Law.
"AUDITOR" means the auditor for the time being appointed pursuant to this
Deed.
"COMMISSIONER" means, as the context requires, the Commissioner of
Taxation, the Insurance and Superannuation Commissioner, the Australian
Prudential Regulation Authority or any other regulatory body which has
responsibility for the administration of occupational superannuation from
time to time.
"COMPULSORY EMPLOYER CONTRIBUTION ACCOUNT" means, in relation to a
Category 5 Member, the Compulsory Employer Contribution Account (if any)
kept in relation to the Member pursuant to clause 7.1.
"COMPULSORY MEMBER CONTRIBUTION ACCOUNT" means, in relation to a Category
5 Member, the Compulsory Member Contribution Account (if any) kept in
relation to the Member pursuant to clause 7.1.
"CONTRIBUTION ACCOUNT" or "CONTRIBUTION ACCOUNTS" means, in relation to a
Member, any one or more (as the context requires) of the Member's
Compulsory Employer Contribution Account (if any), the Member's
Compulsory Member Contribution Account (if any) and the Member's
Voluntary Contribution Account (if any) kept in relation to the Member
pursuant to clause 7.1.
"DEED" means the deed by which the Fund was established, including the
Schedule or Schedules to it, as amended from time to time.
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"DEPENDANT" in relation to a Member means the Spouse and any child of the
Member and any other person who, in the opinion of the Trustee, is or was
at the relevant date wholly or partially dependent on the Member.
"EMPLOYEE" means a person who is classified by the Employer as being in
the permanent Service of the Employer for the purposes of the Fund.
"EMPLOYER" means each or any one (as the context requires) of the
Principal Employer, its subsidiary companies and associated corporations
or firms which, with the approval of the Principal Employer, applies to
the Trustee to become and is accepted as a participant in the Fund, and
where the word 'Employer' is used in relation to a Member it means the
corporation or firm by which the Member is for the time being employed.
An Employer which ceases to have any Employee as a Member of the Fund
will then cease to be an Employer for the purposes of the Fund.
"FINAL AVERAGE SALARY" means the average of the amounts of the Member's
Annual Salaries relating to the Review Dates which occur within the three
years either:
(a) immediately prior to the Member's Normal Retirement Date; or
(b) immediately prior to the Member leaving Service,
but if the Member leaves Service within three years of joining the
Service of the Employer, the Member's Annual Salary at the date of
joining the Service of the Employer will be deemed to have applied at
each preceding Review Date.
"FORMER FUND" means the Thomas Hardy & Sons Pty Ltd Retirement and
Benefit Fund which was established by certain regulations date 11
December 1968.
"FUND" means all of the assets from time to time held by the Trustee on
the trusts declared in this Deed.
"FUND EARNING RATE" means the Fund Earning Rate referred to in clause 15.
"INSURER" in relation to a Policy means the insurer under that Policy and
in relation to a Member means the insurer under the Policy which is
relevant to that Member.
"INVESTMENT INCOME" means the Investment Income determined in accordance
with clause 15.2.
"MEMBER" means an Employee who has been accepted by the Trustee as a
Member of the Fund and who has not ceased to be a Member.
"MEMBERSHIP" means the number of years (including any fraction of a year
being complete months) for which a Member has been a member of the Fund,
or a Member of a particular category of membership, but only in relation
to the period commencing on 1 April 1993.
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"NOMINATED DEPENDANT" means a Dependant nominated by a Member as the
Nominated Dependant.
"NOMINATED RELATIVE" means a Relative nominated by a Member as the
Nominated Relative.
"NORMAL RETIREMENT DATE" means, in relation to a Member:
(a) the Member's 65th birthday;
(b) if the Member transferred to the Fund from the Former Fund on 1
April 1993, and if the Member had the option as a Member of the
Former Fund to retire at an earlier date, such earlier date as is
nominated by that Member in accordance with the terms of that
option; or
(c) such other earlier date as may be nominated for that Member from time
to time by the Trustee.
"POLICY" means any policy of assurance entered into by the Trustee in
relation to a Member for the purpose of securing to the Trustee, subject
to the terms and conditions of that policy, benefits equal to or on
account of the benefits payable to or in respect of a Member under this
Deed.
"PRINCIPAL EMPLOYER" means
(a) BRL Hardy Limited;
(b) any corporation or firm carrying on business in succession to or on
reconstruction of the Principal Employer; or
(c) the Employer which in accordance with this Deed has assumed the
responsibilities of the Employer referred to in (a) or (b) of this
definition for the purposes of this Deed and the Rules.
"RELATIVE" in relation to a Member or former Member means:
(a) the parent, grandparent, brother, sister, uncle, aunt, nephew,
niece, cousin, grandchild or great-grandchild of the Member;
(b) any spouse of any of the persons specified in paragraph (a);
(c) any child of any of the persons specified in paragraph (a) or (b);
or
(d) any other natural person who has applied to the Trustee for payment
of a benefit in respect of a Member, to whom the Trustee considers
it appropriate to pay a benefit in respect of the Member.
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"RELEVANT LAW" means the Act, as modified in its application to the Fund
by any subsisting declaration, modification or exemption granted by the
Commissioner and, where the Trustee deems appropriate:
(a) any announcement of a proposed change to the Act whether or not the
change is to have retrospective effect;
(b) any circular guideline ruling announcement or advice given by the
Commissioner;
where the Trustee considers that observance of or compliance with any
such announcement circular guideline ruling or advice will either:
(c) be a prerequisite for or in any way assist the Fund to be a
Superannuation Fund in relation to each year of income; or
(d) be necessary to ensure that the Trustee does not breach the Act.
"REVIEW DATE" means:
(a) 1 July in each year or such other date as is determined by the
Trustee to be applicable generally or in the case of any particular
Member as the date in relation to which adjustments to contributions
and benefits are to be determined;
(b) in relation to a new Member, the date on which he or she joins the
Fund.
"ROLLOVER PAYMENT" means any payment made by the Trustee at the request
of a Member or former Member or in other circumstances allowed under
Relevant Law or acceptable to the Commissioner to any one or more of the
following:
(a) the trustee of an approved deposit fund;
(b) the trustee of a Superannuation Fund;
(c) the trustee of an eligible rollover fund;
(d) the issuer of an Annuity.
"RULES" means the rules contained in the First Schedule to the Deed.
"SALARY" means either:
(a) the remuneration for services rendered by the Member to the Employer
or at which the Member is employed by the Employer but excludes any
overtime or special or ex-gratia grant or allowance for residence,
travelling or otherwise; or
(b) in any special case such amount as is for the purposes of the Fund
agreed upon between the Member and the Employer.
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"SERVICE" means continuous service with the Employer. For the purposes of
this definition an Employee's service shall not cease to be continuous
by reason only of:
(a) a transfer from the service of one Employer to the service of
another Employer; or
(b) the Employee's temporary absence from the service of the Employer:
(i) while he or she is engaged in compulsory military service or
in service in the armed forces of Australia or its allies
in time of war; or
(ii) in any other circumstances which for the purposes of the
Fund the Employer regards as not resulting in a break
in the continuity of the Employee's service; or
(c) the Employee being entitled to the payment of a benefit under Rule 4
and (in relation to that benefit) his or her temporary absence from
the Service of the Employer for the continuous period immediately
prior to becoming entitled to that benefit;
and "SERVICE OF THE EMPLOYER" has a corresponding meaning.
"SG ACT" means, as the context requires, the Superannuation Guarantee
(Administration) Act 1992 or the Superannuation Guarantee Charge Act
1992.
"SIS ACT" means the Superannuation Industry (Supervision) Act 1993.
"SPOUSE" means a Member's husband or wife or a person who, although not
legally married to a Member, lives (or lived at the time of the Member's
death) with the Member on a bona fide domestic basis as the husband or
wife of the Member.
"SUPERANNUATION FUND" means a superannuation fund which, in the opinion
of the trustees of the fund, in the relevant year of income, will be a
"complying superannuation fund" for the purposes of Relevant Law.
"TAXATION" includes income tax (including capital gains tax, tax on
eligible termination payments and tax on contributions) payroll tax, land
tax, stamp duty and any surcharge, levy, impost or other taxes or duties
of a like or similar nature.
"TEMPORARY TOTAL DISABLEMENT" in relation to a Member means:
(a) Temporary Total Disablement as defined in any Policy effected by the
Trustee and in force for the time being in respect of the Member or
agreed upon from time to time by the Trustee and the relevant
Insurer for the purposes of the Policy; or
(b) (if at any time there is no Policy in force) disablement (other than
Total and Permanent Disablement) resulting from an illness or injury
to the Member (which
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is proved to the satisfaction of the Trustee after considering such
medical or other evidence or advice as they may require from time to
time) while the Member is in the Service of the Employer and as a
result of which:
(i) the Member has been continuously absent from Service for a
period of three consecutive months;
(ii) during the first two years of any one period of continuous
absence from Service the Member is, in the opinion of the
Trustee, unable to perform each and every normal duty as an
Employee;
(iii) during the remainder of that period of continuous absence from
Service the Member is, in the opinion of the Trustee, unable
to engage in any regular remunerative work for which he or she
is reasonably fitted by education or training or experience;
and
(iv) the Member remains under the regular care and attention of a
legally qualified medical practitioner;
as long as the Trustee is satisfied the illness or injury was not
inflicted for the purpose of obtaining a benefit under the Fund;
and "TEMPORARILY TOTALLY DISABLED" has a corresponding meaning.
"TOTAL AND PERMANENT DISABLEMENT" in relation to a Member means:
(a) Total and Permanent Disablement as defined in any Policy effected by
the Trustee and in force for the time being in respect of the Member
or agreed upon from time to time by the Trustee and the relevant
Insurer for the purposes of the Policy; or
(b) (if at any time there is no Policy in force) the Member's incapacity
to the extent:
(i) of the loss of two limbs (where limbs include the whole of one
hand or the whole of one foot) or the sight of both eyes or
the loss of one limb and the sight of one eye; or
(ii) (after a period of six consecutive months' continuous absence
from Service on account of illness or injury which is proved
to the satisfaction of the Trustee) that in the opinion of the
Trustee (after considering such medical or other evidence or
advice as it may require from time to time) the Member is
unable and unlikely ever again to be able to undertake any
form of regular remunerative work for which he or she is
reasonably fitted by education or training or experience;
as long as the Trustee is satisfied the illness or injury was not
inflicted for the purpose of obtaining a benefit under the Fund;
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and "TOTALLY AND PERMANENTLY DISABLED" has a corresponding meaning.
"TRUSTEE" means the persons who, for the time being, are the trustees of
the Fund whether original additional or substituted.
"VOLUNTARY CONTRIBUTION ACCOUNT" means, in relation to a Member, the
Voluntary Contribution Account (if any) kept in relation to the Member
pursuant to clause 7.1.
1.2 INTERPRETATION
Reference to:
(a) one gender includes the other gender;
(b) the singular includes the plural and vice versa;
(c) a person includes a body corporate;
(d) a statute, regulation or provision of a statute or regulation
("STATUTORY PROVISION") will be construed as a reference to that
Statutory Provision as amended or re-enacted from time to time and
includes any statute, regulation or provision enacted in replacement
of that Statutory Provision;
(e) a clause or schedule is a reference to a clause or schedule of this
Deed (unless the context otherwise requires);
and headings are for convenience only and do not affect the
interpretation of this Deed.
1.3 SEVERANCE
If:
(a) any provision of this Deed is void or voidable or unenforceable in
accordance with its terms, but would not be void, voidable,
unenforceable or illegal if it were read down and is capable of
being read down, the provision must be read down accordingly;
(b) notwithstanding paragraph (a), a provision of this Deed would still
be void, voidable, unenforceable or illegal:
(i) if the provision would not be void, voidable, unenforceable or
illegal if a word or words were omitted, that word or those
words must be severed; and
(ii) in any other case, the whole provision must be severed;
and the remainder of this Deed will be of full force or
effect.
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1.4 WORDS AND EXPRESSIONS DEFINED IN ACT
Unless a word or expression used in this Deed already has a meaning
assigned to it under clause 1.1 or 1.2, or unless the context in which a
word or expression is used in this Deed indicates a contrary intention,
words and expressions used in this Deed will have the meanings assigned
to them in the SIS Act and any regulations made pursuant to the SIS Act.
2. THE FUND
2.1 ESTABLISHMENT
The Fund commenced on 1 July 1982 and will continue under the name BRL
Hardy Superannuation Fund.
2.2 FUND VESTED IN TRUSTEE
The Fund will be and will continue to be vested in the Trustee and will
at all times be held controlled and managed by the Trustee subject to the
trusts powers and provisions of this Deed.
3. MEMBERSHIP OF THE FUND
3.1 APPLICATION FOR MEMBERSHIP
Any Employee who has been invited by the Employer to become a Member
and who has, if required by the Trustee, lodged with the Trustee an
application for membership in such form as the Trustee may determine,
will be admitted to membership of the Fund by the Trustee. The Trustee
may also admit an Employee to become a Member without an application
if the Employer requests the Trustee to do so.
3.2 ADMISSION TO MEMBERSHIP
When the Trustee admits an Employee to membership of the Fund, the
Employee will become a Member and will be bound by this Deed.
3.3 SPECIAL CONDITIONS AND CATEGORIES OF MEMBERSHIP
(a) The terms and conditions applicable to a Member's membership of
the Fund, including the contributions and benefits payable to or in
respect of the Member, may be varied by written agreement between
the Principal Employer, the Trustee and the Member.
(b) Members may be divided into categories at the Principal Employer's
discretion. If at any time there are different categories of
membership:
(i) the Principal Employer must determine and advise the Trustee
of the appropriate category for each Member and of any
subsequent change of
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category for a particular Member;
(ii) a Member may change his or her category of Membership from one
category to another with the approval of the Principal
Employer and the Trustee, on whatever terms and conditions are
determined by the Trustee and approved by the Principal
Employer at that time.
(c) As from 1 July 1997, there will be seven categories of membership,
with the benefits for each category of member being as set out in
the Rules.
3.4 INFORMATION TO BE GIVEN TO NEW MEMBERS
As soon as practicable after the admission of a person as a Member of the
Fund the Trustee will give to that Member any information required by
Relevant Law.
3.5 PROVISION OF INFORMATION
Every Member and any person who may become entitled to be paid a benefit
from the Fund when requested by the Trustee must furnish such information
as the Trustee deems necessary for the purposes of any investigation or
otherwise in connection with the Fund. Every Member must submit to
medical examinations as required by the Trustee by a registered medical
practitioner nominated by the Trustee.
3.6 FAILURE TO COMPLY
If a Member or any other person who becomes entitled to be paid a benefit
from the Fund fails to comply with the provisions of clause 3.5 the
Trustee may suspend the payment of any contributions in respect of that
Member or withhold any benefit in respect of that Member or person until
the Member or other person does comply.
3.7 INCORRECT OR MISLEADING INFORMATION
Where a Member or any other person who becomes entitled to be paid a
benefit from the Fund furnishes information required pursuant to this
Deed which affects or is likely to affect the benefits payable to or in
respect of the Member or person and the information supplied is incorrect
or misleading or any relevant information is deliberately withheld, the
Trustee may in its absolute discretion, but subject always to Relevant
Law, alter those benefits in such manner as the Trustee considers
appropriate.
4. CONTRIBUTIONS TO THE FUND
4.1 MEMBER CONTRIBUTIONS
(a) A Category 1, 2, 3, 4 or 6 Member is not required to make any
contribution to the Fund.
(b) A Category 5 Member must contribute to the Fund at the rate of 3.33%
of his or
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her Salary, and a Category 7 Member must contribute to the
Fund at the rate of 4% of his or her Salary, until in either case
the Member:
(i) leaves Service; or
(ii) receives the whole of his or her benefit under the Rules
(other than a benefit under rule 7); or
(iii) reaches age 65.
(c) A Member of any Category may make any voluntary contributions to the
Fund which are first approved by the Trustee.
4.2 EMPLOYER CONTRIBUTIONS
Subject to the other provisions of this Deed, the following provisions
apply in relation to contributions by each Employer to the Fund:
(a) each Employer must contribute to the Fund in each year such amount
as the Trustee considers necessary, having obtained appropriate
actuarial advice but subject always to Relevant Law, to maintain the
level of benefits payable from the Fund to the Members;
(b) each Employer must contribute to the Fund in each year on behalf of
each Category 6 Member the minimum amount which the Employer is
required to contribute to the Fund on behalf of the Member in order
to avoid having to pay the charge under the SG Act in relation to
that Member, which contributions may be made (in whole or in part)
following agreement between the Principal Employer and the Trustee
by the application of an appropriate part of the surplus of the Fund
as determined having regard to appropriate actuarial advice; and
(c) each Employer may contribute such other amounts as may be agreed
from time to time between the Principal Employer and the Member.
4.3 PAYMENT OF CONTRIBUTIONS
Contributions will be paid at the times and in the manner agreed between
the Trustee and the Employer but, in any event, contributions must be
paid to the Trustee within any maximum period specified by Relevant Law.
Unless the Member and the Employer agree otherwise, the Employer may
deduct the Member's contributions from the Member's remuneration.
4.4 ACCEPTANCE OF CONTRIBUTIONS
The Trustee:
(a) may accept contributions from any person in respect of a Member to
the extent permitted by Relevant Law;
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(b) must not accept any contribution if, in the opinion of the Trustee,
the acceptance of the contribution would not be permitted by
Relevant Law.
4.5 INTEREST ON CONTRIBUTIONS
The Trustee may require an Employer to pay interest on any contributions
payable by the Employer which are in arrears at the Fund Earning Rate or
such other rate as may be determined by the Trustee.
4.6 FORM OF CONTRIBUTIONS
Subject to Relevant Law and to the Trustee in its discretion allowing
such contributions, contributions may be made either in cash or by
transfer to the Fund of an asset in specie. If a contribution is made by
the transfer of an asset to the Fund, the amount of the transfer will be
the market value of that asset at the time of its transfer, and the
transfer will be undertaken on such terms and conditions as are
determined by the Trustee.
4.7 TERMINATION, REDUCTION OR SUSPENSION OF EMPLOYER CONTRIBUTIONS
(a) Any Employer may at any time, by giving one month's written notice
to the Trustee and Principal Employer of its decision to do so,
terminate, reduce or suspend the payment by that Employer of all or
any of its contributions to the Fund.
(b) Upon the expiration of the notice period referred to in paragraph
(a), the liability of that Employer to make those payments of
contributions to the Fund will cease either wholly or to the extent
or for the period or in the circumstances prescribed in the notice,
but payments due on or before the date of expiration of the notice
period will not be affected.
(c) If any Employer terminates, reduces or suspends its contributions to
the Fund in respect of some or all of the Members for whom it has
been contributing, then unless another Employer agrees to continue
the contributions in respect of those Members, the Trustee will
reduce or modify the benefits in respect of those Members on such
basis as the Trustee, after considering the advice of the Actuary,
considers fair and equitable. The reduced or modified benefits will,
subject to the other provisions of this Deed and the Rules, be dealt
with under the Rules in the same manner as if the benefit had not
been so reduced or modified.
(d) If the Principal Employer terminates its contributions to the Fund,
but at least one of the Employers continues to contribute, then the
Principal Employer will cease to be the Principal Employer for the
purposes of this Deed and the Rules. One of the other Employers
which is continuing to contribute must then assume the
responsibilities of the Principal Employer for the purposes of this
Deed and the Rules.
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5. TRANSFERS TO OTHER FUNDS
5.1 TRANSFERS TO OTHER FUNDS
Without in any way affecting any other provision of this Deed giving the
Trustee power to transfer a Member's benefit in the Fund to another
superannuation arrangement or otherwise deal with the Member's interest
in the Fund, but subject to any requirements of Relevant Law, where a
Member joins or is eligible to join a Superannuation Fund ("OTHER FUND"),
and
(a) the Member, with the consent of the Principal Employer, requests
that some or all of the Member's benefit in the Fund be transferred
to the Other Fund ("TRANSFERRED AMOUNT"); or
(b) the Trustee wishes to transfer the Transferred Amount to the Other
Fund and is permitted by Relevant Law to do so without the Member's
consent,
the Trustee with the approval of the Principal Employer may, subject to
such conditions and indemnities as the Trustee may require, pay the
Transferred Amount to the trustee of the Other Fund or transfer
investments of the Fund of equivalent value to the Transferred Amount.
5.2 BENEFITS REDUCTION
The receipt of the Transferred Amount by the trustee of the Other Fund
will be a complete discharge to the Trustee of all liabilities in respect
of, and the Trustee will have no responsibility to see to the application
of, the Transferred Amount.
6. TRANSFERS FROM OTHER FUNDS
Where a Member is or was a member of or is or was a beneficiary under any
other superannuation arrangement, approved deposit fund, eligible
rollover fund or Annuity, the Trustee may receive from the trustee of the
other superannuation arrangement, approved deposit fund or eligible
rollover fund or from the issuer of the Annuity money or assets in
respect of the Member's interest in the superannuation arrangement,
approved deposit fund, eligible rollover fund or Annuity. The Trustee
will hold the money or assets received as part of the Fund subject to any
requirements of Relevant Law and will either:
(a) credit the particular Member's Voluntary Contribution Account in
such manner as the Trustee, the Member and the Principal Employer
agree; or
(b) hold them in such other manner as the Trustee, the Member and the
Principal Employer agree,
to take account of the money and property transferred in respect of that
Member under this clause 6.
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7. FUND ACCOUNTS
7.1 CONTRIBUTION ACCOUNTS
(a) The Trustee will keep a Voluntary Contribution Account in respect of
each Member for the purpose of administering the Fund and, in
particular, for the purpose of calculating the benefits payable from
the Fund, to which account the following amounts will be credited:
(i) contributions made by the Member pursuant to clause 4.1(c);
and
(ii) contributions made by an Employer in respect of the Member
pursuant to clause 4.2(b) or 4.2(c).
(b) The Trustee will keep a Compulsory Employer Contribution Account in
respect of each Category 5 Member for the purpose of administering
the Fund and, in particular, for the purpose of calculating the
benefits payable from the Fund, to which account will be credited
the amount, for each financial year of fund membership since 1 July
1992, that would need to have accumulated for that Member (including
interest credited and reduced by applicable tax and insurance
premiums) to ensure that the Employer avoided and continues to avoid
the charge under the SG Act and meets any applicable industrial
awards for that year.
(c) The Trustee will keep a Compulsory Member Contribution Account in
respect of each Category 5 Member for the purpose of administering
the Fund and, in particular, for the purpose of calculating the
benefits payable from the Fund, to which account will be credited
contributions made by the Member pursuant to clause 4.1(b).
7.2 CREDITING OF ACCOUNT
In addition to any amounts to be credited to one or more of the Member's
Contribution Accounts pursuant to clause 7.1, each Member's Contribution
Account or Accounts will, subject to any restrictions imposed by
Relevant Law, be credited with:
(a) such portion of the Investment Income of the Fund (if positive) as
the Trustee determines will be credited to each of the Member's
Contribution Accounts in accordance with clause 15.3; and
(b) any other amounts which the Trustee with the consent of the
Principal Employer determines will be credited to each of the
Member's Contribution Accounts.
7.3 DEBITING OF ACCOUNT
Each of a Member's Contribution Accounts will, subject to any
restrictions imposed by Relevant Law, be debited with:
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(a) such portion of the Investment Income of the Fund (if negative), as
the Trustee determines will be debited to each of the Member's
Contribution Accounts in accordance with clause 15.3; and
(b) the amount of any Taxation liability which in the opinion of the
Trustee will be incurred by virtue of the Fund's acceptance of any
contributions which are to be credited to each of the Member's
Contribution Accounts in accordance with clause 16.1; and
(c) any amount which is paid to the Member pursuant to clause 8.2 and
which the Trustees determine will be debited to one or more of the
Member's Contribution Accounts; and
(d) any other amounts which the Trustee with the consent of the
Principal Employer determines will be debited to each of the
Member's Contribution Accounts.
7.4 ADDITIONAL ACCOUNTS
In addition to the Member's Contribution Accounts, the Trustee may
establish and maintain such other accounts as the Trustee deems
appropriate.
8. BENEFITS
8.1 Subject to the provisions of this Deed:
(a) the benefits described in the Rules will be payable from the Fund to
a Member in the circumstances described in the Rules;
(b) benefits may also be paid in such other circumstances as are
nominated from time to time by the Trustee and which are permitted
by Relevant Law.
8.2 If Relevant Law and the Rules require or permit a Member to cash some or
all of the amount standing to the credit of his or her Contribution
Accounts, despite not being entitled under the Rules or Relevant Law to
any other benefit, the Trustee may cash that part of the Member's
benefit, in which case the Trustee will, in accordance with clause
7.3(c), debit one or more of the Member's Contribution Accounts, in such
manner as the Trustee considers reasonable and appropriate, with that
part of the benefit which has been cashed.
9. PAYMENT OF BENEFITS
9.1 METHOD OF PAYMENT
(a) Benefits are payable at the principal office for the time being of
the Principal Employer or otherwise as may be determined by the
Trustee.
(b) The Trustee may pay a benefit by forwarding a cheque to the postal
address last
- 15 -
notified of the person to whom the benefit is payable or paying the
benefit directly to a bank or other account nominated by the person
or in such other manner as the Trustee determines.
(c) All benefits will be expressed and paid in Australian currency
unless otherwise specifically agreed between the Member and the
Trustee.
9.2 RECEIPT FOR BENEFITS
Any person to whom a benefit is payable must if requested furnish the
Trustee with a receipt and release in the form from time to time required
by the Trustee.
9.3 TAX ON BENEFITS
The Trustee may deduct from any benefit payable pursuant to this Deed any
Taxation.
9.4 PENSIONS AND ANNUITIES
(a) Upon a Member becoming entitled to be paid a lump sum benefit, the
Member may request the Trustee to pay some or all of the Member's
benefit as an income benefit. That request must be made in writing
and must be received by the Trustee within 30 days from the date on
which that Member's entitlement arose or such longer period as the
Trustee may in its absolute discretion determine.
(b) If the Member's request meets the requirements of this clause 9.4,
the Trustee must, subject to any requirements of Relevant Law,
arrange for the payment of that proportion of the Member's benefit
as the Member requested be paid in the form of an income benefit
to be paid as an income benefit either by applying the relevant
proportion of the benefit in the purchase of an Annuity for the
Member in such manner and on such conditions as the Trustee in its
absolute discretion determines or, with the consent of the Principal
Employer, by paying the relevant proportion of the benefit as a
pension of such amount and on such conditions as the Trustee and the
recipient of the pension agree.
(c) If the recipient elects that the pension is to be a pension for the
purposes of Relevant Law and that it is to comply with certain
minimum standards prescribed by Relevant Law, the agreement between
the Trustee and the recipient must include the requirements that
ensure both that it is a pension of that type and that it complies
with those standards, and this Deed will be deemed to include in it
those requirements and those standards but only to the extent that
the Deed relates to that pension.
9.5 PAYMENT OF BENEFITS ON DEATH OR DISABLEMENT
(a) Where any benefit becomes payable to or in respect of a Member
pursuant to this Deed and the Member is not alive when the benefit
is to be paid, the Trustee may pay or apply the benefit to or for
the benefit of such one or more as determined by the Trustee in its
absolute discretion of the Nominated Dependants and/or any
- 16 -
other Dependants of the former Member and/or the Legal Personal
Representative of the Member in the manner at the times by the
instalments and in such proportions between them (if more than
one) as the Trustee may from time to time in its discretion
determine. If the Member left no Nominated Dependants or other
Dependants and there is no Legal Personal Representative of the
Member, the Trustee may pay such portion of the benefit as may be
allowed under Relevant Law to the Nominated Relative and/or any
other Relative of the Member as determined by the Trustee in its
absolute discretion. Any portion of the benefit which is not
applied in accordance with this clause will be absolutely forfeited
and will remain in the Fund to be dealt with in accordance with
clause 11.3.
(b) Any amount payable on a Member's Total and Permanent Disablement
must be paid or applied for the benefit of any one or more of the
Member and the Member's Dependants in such shares and proportions
and in such manner as the Trustee in its absolute discretion shall
decide.
(c) If a Member dies before the whole of the benefit payable on his or
her Total and Permanent Disablement has been paid or applied
pursuant to paragraph (b) that benefit or any balance of it must be
paid in accordance with paragraph (a).
9.6 PAYMENT TO OTHERS ON BEHALF OF BENEFICIARIES
When any person to whom a benefit becomes payable is under the age of 18
years or when in the opinion of the Trustee it would be in the best
interests of that person, the Trustee may pay all or part of any benefit
to any other person for application on behalf of that person and the
receipt of the person to whom the benefit is paid will be a complete
discharge to the Trustee for the payment in respect of the person. The
Trustee will not be bound or concerned to see to the application of the
benefit so paid.
9.7 BENEFIT PAYMENT RESTRICTIONS
Benefits payable to or in respect of a Member may only be paid to the
Member in cash to the extent permitted by Relevant Law.
9.8 PRESERVED BENEFITS
Any benefits which have become payable to a Member but which are unable
to be paid to the Member in cash may, at the discretion of the Trustee,
be dealt with in accordance with clause 5.1, clause 9.11 or clause 9.15
or retained in the Fund.
9.9 RETENTION OF BENEFIT IN THE FUND
At the request of a Member or any other person who becomes entitled to be
paid a benefit from the Fund, the Trustee may at its absolute discretion
but subject to the requirements of Relevant Law, retain all or part of
the benefit in the Fund until:
(a) the former Member or person entitled requests that it be paid to
him;
- 17 -
(b) the Member dies; or
(c) the Trustee elects for whatever reason to pay the benefit to the
former Member or the person entitled thereto,
whichever first occurs.
9.10 INTEREST ON BENEFITS
If any benefit is retained in the Fund, the Trustee may in its absolute
discretion increase the benefit by an amount of interest calculated at
the Fund Earning Rate in respect of the period from the date on which the
benefit became payable until the date on which the benefit is paid.
9.11 ROLL OVER PAYMENTS
Where a Member or former Member wishes to effect a Roll Over Payment in
respect of all or any part of any benefit payable from the Fund he or she
must make a request to the Trustee in writing nominating the institution
to which the payment is to be made and the amount to be applied as the
Roll Over Payment. The Member or former Member must in addition complete
and execute such documents as are required to enable the Roll Over
Payment to be effected and for it to be recorded by the Commissioner, but
in circumstances provided for in Relevant Law or otherwise acceptable to
the Commissioner the Trustee may effect a Roll Over Payment in relation
to a Member's benefit without the consent of the Member or former Member.
9.12 TRANSFER OF POLICY
Where a Member or any other person is entitled to be paid or the Trustee
in its discretion determines to pay a benefit and where the Trustee holds
a Policy of any kind in respect of the Member, the Trustee may in its
absolute discretion and in lieu of surrendering the Policy assign it to
the Member or other person or to such one or more of them to the
exclusion of the other or others as the Trustee in its discretion may
determine. The value of the Policy as at the date of assignment will be
deducted from the benefit payable to the Member or other person. Neither
the Trustee nor the Principal Employer will be liable to pay any premiums
becoming due and owing under the said Policy as from the date of the
assignment.
9.13 TRANSFER OF INVESTMENTS
The Trustee may with the consent of a Member or any other person to whom
a benefit is payable and to the extent permitted by Relevant Law
transfer investments of the Fund of equivalent value to that Member or
other person in lieu of paying the whole or part of the amount otherwise
payable.
- 18 -
9.14 NO BENEFICIAL INTEREST
Notwithstanding any provision of this Deed, no Member or any other person
entitled to be paid a benefit from the Fund will have or acquire any
beneficial or other interest in a specific asset of the Fund or the
assets of the Fund as a whole while such asset or assets remain subject
to the provisions of this Deed.
9.15 UNCLAIMED OR UNPAID BENEFITS
The Trustee may deal with any unclaimed money or any benefits which have
not been paid to a Member within 90 days (or any other period described
by Relevant Law) of the benefit becoming payable in the manner specified
in Relevant Law.
10. ASSIGNMENTS, CHARGES AND MONEYS OWING TO THE FUND OR TO THE EMPLOYER
10.1 ASSIGNMENTS AND CHARGES
The Trustee must not recognise, or in any way encourage or sanction, the
assignment of or a charge over the whole or any part of a Member's
benefit or his or her interest in it, or a charge over the whole or any
part of the Fund, except to the extent that in any case it is permitted
by Relevant Law.
10.2 DEDUCTION FROM BENEFIT
Subject to the requirements of Relevant Law, the Trustee may deduct from
any part of a Member's benefit and either itself retain or if appropriate
pay to the Principal Employer any money owing by the Member to the
Trustee or, if the Trustee is satisfied that the Employer's claim is
valid, to the Employer, and pay any balance to the Member or other person
to whom the benefit would but for this clause have been payable.
11. FORFEITURE OF BENEFITS
11.1 CONDITIONS OF FORFEITURE
Subject to the requirements of Relevant Law, any Member, former Member or
after the Member's death, any of the Member's Dependants or the Member's
legal personal representative:
(a) who assigns or charges or attempts to assign or charge any benefit;
(b) whose benefits whether by his or her own act operation of law an
order of any Court or otherwise become payable to or vested in any
other person, company, government or other public authority;
(c) who becomes bankrupt or insolvent; or
- 19 -
(d) who in the opinion of the Trustee is mentally ill or of unsound mind
or is incapable of managing his or her affairs;
will, to the extent permitted under Relevant Law and at law generally:
(e) if paragraph (c) applies to a Member, forfeit entitlement to that
portion of the benefit which exceeds the Member's pension reasonable
benefit limit for the purpose of the Act;
(f) otherwise, forfeit entitlement to all of his or her benefits and in
the case of a Member he or she will cease to be a Member.
11.2 APPLICATION OF CERTAIN FORFEITED BENEFITS
Subject to the requirements of Relevant Law, the Trustee may pay or apply
the whole or any part of any benefits which have been forfeited to or for
the benefit of the former Member or his or her Dependants or any one or
more of them in such proportions between them and on such terms as the
Trustee may from time to time in its absolute discretion determine or, if
the Member has died, the benefits may be applied in accordance with
clause 9.5.
11.3 APPLICATION OF REMAINING FORFEITED BENEFITS
Any forfeited benefits not dealt with in accordance with clause 11.2 will
be forfeited to the Fund.
12. THE TRUSTEE
12.1 TRUSTEE MUST BE A CONSTITUTIONAL CORPORATION
There will only be one Trustee and the Trustee must be a constitutional
corporation.
12.2 RETIREMENT OF TRUSTEE
The Trustee:
(a) must immediately retire by written notice to the Principal Employer
if the Trustee becomes a disqualified person for the purposes of
Relevant Law; and
(b) may, at any time, retire by giving 60 days' (or such shorter period
to which the Principal Employer may agree) written notice to the
Principal Employer;
and in either case, the Principal Employer must, by deed, appoint
another constitutional corporation to act as Trustee in its place.
- 20 -
12.3 CONSTITUTION
The Trustee must at all times ensure that its Constitution is consistent
with any applicable requirements of Relevant Law.
12.4 CONTINUITY OF OFFICE
A Trustee will, on ceasing to be a Trustee, do everything necessary to
vest the Fund in the new Trustee and deliver all records and other books
to the new Trustee.
12.5 OFFICE OF TRUSTEE
The office of Trustee must be filled at all times and if a vacancy occurs
a new Trustee must be appointed as soon as is reasonably practicable but
in any event within 60 days of that vacancy occurring. If for any reason
there is at any time no Trustee of the Fund, the Principal Employer will
undertake the duties of the Trustee to the extent that it is necessary
until the appointment of a new Trustee.
13. TRUSTEE'S POWERS AND MANAGEMENT
13.1 TRUSTEE'S GENERAL POWERS
The Trustee will have power:
(a) to manage administer and deal with the Fund and all proceedings
matters and things connected with the Fund; and
(b) to enter into and execute all contracts deeds and documents and to
do all such matters and things as it considers expedient for the
purpose of carrying out the trusts authorities powers and
discretions conferred upon the Trustee by this Deed with power,
subject to the other provisions of this Deed, to give such
undertakings and incur all such obligations relating to the Fund as
the Trustee thinks fit;
and such further powers as may be necessary ancillary or incidental to
this Deed.
13.2 ADDITIONAL SPECIFIC POWERS
In addition to the powers which it has by law and which are otherwise
granted to it by this Deed the Trustee will have the following powers:
(a) to settle compromise or submit to arbitration any claim matter or
thing relating to this Deed or the Fund or to the rights of Members
former Members or any other persons claiming to be entitled to be
paid a benefit pursuant to this Deed;
(b) to commence carry on or defend proceedings relating to the Fund or
to the rights of Members former Members or other persons claiming to
be entitled to be paid a benefit from the Fund;
- 21 -
(c) subject to any restrictions contained in Relevant Law, to borrow
money and to secure the repayment of that money in any manner and
upon any terms with or without security which the Trustee may
consider advisable;
(d) to insure or reinsure any risks contingencies or liabilities of the
Fund;
(e) to underwrite, sub-underwrite or otherwise assume liability for any
risk contingency or liability under any superannuation arrangement
conducted by the Principal Employer in connection with any transfer
of Employees to the Fund;
(f) to retain the services of and to appoint professional or other
advisers or agents in relation to the management administration or
investment of the Fund and to pay out of the Fund all expenses of
and incidental to the management and administration of the Fund
including the fees of any advisers or agents and the remuneration of
persons appointed pursuant to this Deed and to revoke any such
appointment; and
(g) to indemnify or undertake to indemnify any person company government
or institution in respect of any claim matter or thing relating to
the Fund or to the rights of Members, former Members or other
persons entitled in respect of the Fund.
13.3 TRUSTEE DISCRETION
In the exercise of the authorities powers and discretions vested in it
pursuant to this Deed, the Trustee will have an absolute and unfettered
discretion and may from time to time exercise or enforce all or any of
such powers authorities and discretions and will have power generally to
do all such things as the Trustee in its absolute discretion considers
appropriate in the administration of the Fund and the performance of its
obligations under this Deed.
13.4 TRUSTEE MAY ACT ON ADVICE
The Trustee may act on the advice or opinion of any accountant actuary
barrister solicitor medical practitioner professional adviser or expert
whether or not such advice has been obtained by the Trustee.
13.5 INDEMNITY OF TRUSTEE AND DIRECTORS
The Trustee and each of its directors will be indemnified out of the Fund
against all liabilities, losses, costs and expenses (excluding any
liability for a monetary penalty under a civil penalty order imposed
under the SIS Act) incurred in the exercise or purported exercise or
attempted exercise of the trusts powers authorities and discretions
vested in the Trustee under this Deed or at law and will have a lien on
and may use the moneys forming part of the Fund for the purposes of this
indemnity and generally for the payment of all legal and other costs
charges and expenses of administering or winding up the Fund and
otherwise of performing their duties under this Deed. This indemnity will
extend to any payments made to any person whom the Trustee bona fide
believes to
- 22 -
be entitled to it although it may subsequently be found that the person
was not in fact so entitled, but will not be available to any person if
the person failed to act honestly or intentionally or recklessly failed
to exercise the degree of care and diligence that the person was required
to exercise. In this clause, the word "Trustee" includes any former
Trustee.
13.6 DELEGATION BY TRUSTEE
The Trustee may delegate to any one or more persons firms or companies on
such terms as the Trustee may think fit any of the authorities powers and
discretions conferred upon the Trustee. Without limiting the generality
of the foregoing the Trustee may appoint from time to time such one or
more persons firms or companies as the Trustee may think fit to act
either as custodian or investment manager or both subject to such
conditions as the Trustee may from time to time determine and may
delegate to and confer upon such a custodian or investment manager such
authorities power or discretions, including the Trustee's power of
delegation, as the Trustee may think fit. The Trustee will have power to
pay out of the Fund to any such custodian investment manager or other
delegate such remuneration for its services as the Trustee considers
proper and to remove from time to time any such custodian or investment
manager.
13.7 TRUSTEE REMUNERATION
The Trustee will not receive any salary or remuneration from the Fund in
respect of its services as Trustee unless otherwise agreed in writing
between the Principal Employer and the Trustee, but nothing in this Deed
will preclude any firm corporation or partnership of which the Trustee or
any of its directors is a partner director shareholder related body
corporate (as defined in the Corporations Law) or employee from being
paid out of the Fund any proper fees or remuneration for professional or
other services rendered by such firm, corporation or partnership in
connection with the Fund.
13.8 CONFIDENTIALITY OF INFORMATION
The Trustee and the Principal Employer will regard as strictly
confidential so far as practicable all information disclosed to or gained
by it in the course of administering the Fund or otherwise in connection
with this Deed or anything relating or incidental to it.
13.9 LIABILITY OF TRUSTEE
The Trustee will not be liable for any loss or breach of trust whatsoever
other than:
(a) loss attributable to the Trustee, in relation to a matter affecting
the Fund, failing to act honestly or intentionally or recklessly
failing to exercise the degree of care and diligence that the
Trustee was required to exercise; or
(b) liability for a monetary penalty under a civil penalty order made
against the Trustee under the SIS Act.
- 23 -
13.10 LIABILITY OF DIRECTORS OF TRUSTEE
A director of the Trustee will not be liable for any loss or breach of
trust whatsoever other than:
(a) loss attributable to the director, in relation to a matter affecting
the Fund, failing to act honestly or intentionally or recklessly
failing to exercise the degree of care and diligence that the
director was required to exercise; or
(b) liability for a monetary penalty under a civil penalty order made
against the director under the SIS Act.
13.11 INQUIRIES AND COMPLAINTS
The Trustee may, and to the extent required pursuant to Relevant Law,
must, establish arrangements under which:
(a) Members and other beneficiaries have the right to make inquiries
into, or complaints about, the operation or management of the Fund
in relation to the Member or beneficiary making the inquiry or
complaint; and
(b) those inquiries or complaints will be properly considered and dealt
with within 90 days or such other period as may be prescribed by
Relevant Law after they are made.
14. INVESTMENTS
14.1 AUTHORISED INVESTMENTS
Subject to:
(a) the restrictions imposed by Relevant Law on investing in in-house
assets;
(b) any prohibition on acquiring certain kinds of assets from Members or
relatives of Members which is prescribed by Relevant Law;
(c) any prohibition prescribed under Relevant Law against lending money
or giving financial assistance to, Members or relatives of Members;
(d) any other restrictions imposed by Relevant Law;
so much of the moneys forming part of the Fund from time to time as is
not required immediately for the payment of benefits or other amounts
authorised by this Deed may be invested by the Trustee in any investment
whatsoever which the Trustee considers appropriate, including, but
without in any way being limited to, the following investments:
(i) any investment for the time being authorised by the laws of
the
- 24 -
Commonwealth of Australia or any State or Territory thereof
for the investment of trust funds;
(ii) any mortgage on freehold property situated in Australia or
elsewhere even though the amount of the loan may exceed
two-thirds of the value of the property and whether or not a
report or valuation has been obtained on the value of the
property;
(iii) on deposit with or on loan to any bank building society or
other financial institution;
(iv) on deposit with or on loan to the Principal Employer or any
other person or organisation whatsoever with or without
security and at such rate of interest and upon such terms as
the Trustee may deem reasonable notwithstanding that the
Trustee may have a direct or indirect interest in the
borrowing or may benefit directly or indirectly therefrom;
(v) the purchase or acquisition in any way of shares or stock of
any class or description or of any type of bond mortgage
debenture note option or other like security in or of the
Principal Employer or any other company or trust fund,
society, unincorporated association or other entity in any
part of the world whether or not carrying on business in
Australia and whether the shares or stock be fully or partly
paid up and whether secured or unsecured, registered or
unregistered;
(vi) any Policy or Annuity whether by proposal purchase or
otherwise and any choses in action interest for life or any
lesser term or in reversion or howsoever arising;
(vii) the purchase or acquisition of any interest in real or
personal property and the improvement or extension thereof;
(viii) the purchase or acquisition of or subscription for any unit
or sub-unit in any unit trust established or situated anywhere
in the world whether individually or jointly and whether such
units or sub-units are fully paid up or whether their issue
involves any contingent or reserve liability;
(ix) the discounting of loans mortgages contracts hire purchase
agreements or leases; and
(x) bills of exchange, promissory notes or other negotiable
instruments.
14.2 POWER TO SELL AND VARY INVESTMENTS
The Trustee will have power as it sees fit to sell any investments and to
vary and transpose any investments into other investments authorised by
this Deed.
- 25 -
14.3 INVESTMENT REQUESTS
The Trustee may from time to time, with the consent of the Principal
Employer, allow a Member to make a request of the Trustee in relation to
the investment of a portion of the Fund's assets representing the
Member's Voluntary Contribution Account on the basis that the Trustee may
comply with any such an investment request, but will not be obliged to do
so. When an investment is made pursuant to any request made by a Member
in accordance with this clause:
(a) the Trustee must note in the Fund's records that the investment was
made in accordance with a Member's investment request and the name
of the Member;
(b) any income or gains or losses of a revenue or capital nature arising
from the investment will be credited or, in the case of a loss,
debited, to the relevant Member's Voluntary Contribution Account and
such amounts will be excluded from the calculation of Investment
Income pursuant to clause 15.2;
(c) any costs, charges or expenses incurred or arising from the
investment and any Taxation which is or may become payable in
respect of the investment will be debited to the Member's Voluntary
Contribution Account and any such amounts will be excluded from the
calculation of Investment Income pursuant to clause 15.2.
15. INVESTMENT INCOME AND ACTUARIAL VALUATION
15.1 INVESTMENT STRATEGIES
The Trustee may, if it considers it reasonable and equitable to do so,
segregate the Fund into two or more separate parts for investment
purposes, with:
(a) each part or parts being notionally attributed to one or more
Categories of Membership;
(b) each part having an investment strategy which is, or may be,
separate and distinct from the investment strategy or strategies for
the other part or parts of the Fund.
15.2 INVESTMENT INCOME
At each Review Date or such other date which the Trustee considers
appropriate, the Trustee must value all of the assets of the Fund at the
Review Date and determine:
(a) the Investment Income of the Fund in respect of the period since the
previous Review Date which will comprise all net income and net
capital gains whether realised or unrealised after deducting any
capital losses and such allowance for expenses and taxation as the
Trustee considers appropriate; and
(b) the Fund Earning Rate to be credited (or debited) to a Member's
Contribution
- 26 -
Accounts (if any) in accordance with clause 15.3;
(c) the Fund Earning Rate to be credited (or debited) in respect of each
separate part of the Fund, if it has been segregated in accordance
with clause 15.1.
15.3 CREDITING ACCOUNTS
The Trustee will as soon as reasonably practicable after the Review Date
credit (if the Fund Earning Rate is positive) or debit (if the Fund
Earning Rate is negative) a Member's Voluntary Contribution Account (if
any) with interest, at the Fund Earning Rate, on such basis as the
Trustee considers equitable having regard to the balances of that account
during the period since the last Review Date, the value of the Fund and
the requirements of Relevant Law.
15.4 INTERIM FUND EARNING RATE
Subject to Relevant Law, the Trustee may, from time to time, determine an
interim Fund Earning Rate which will be used when determining the
interest to be credited (or debited) to any account for the purpose of
calculating benefits.
15.5 ACTUARIAL REPORT AND VALUATION
The Trustee must appoint an actuary to the Fund. At intervals not
exceeding 3 years (or such shorter period as may be required by Relevant
Law) the Trustee must arrange for the Actuary to make an investigation
and valuation of the Fund and to report on the contributions which are
required to be made under clause 4.2(a), and the Trustee will supply such
information as may reasonably be required by the Actuary for that
purpose. The Trustee must arrange for the Actuary to furnish a written
report no later than 12 months after the date of such investigation and
valuation and a copy thereof shall be furnished by the Trustee to the
Principal Employer.
15.6 ACTUARIAL CERTIFICATE
The report referred to in clause 15.5 must contain a certificate in
accordance with the provisions of Relevant Law.
16. COSTS AND EXPENSES AND TAXATION
16.1 COSTS AND EXPENSES
Except as otherwise expressly provided in this Deed:
(a) all costs charges and expenses incurred in connection with the
preparation establishment maintenance administration operation or
winding up of the Fund will be borne by the Fund and paid by the
Trustee and the Trustee may debit a Member's Voluntary Contribution
Account and the Investment Income of the Fund in such manner as it
considers equitable and appropriate to reflect the
- 27 -
payment of or the making of any provision for any such costs charges
and expenses; and
(b) the Trustee will indemnify the Principal Employer in respect of any
costs charges or expenses which are properly incurred by the
Principal Employer.
The Trustee may, however, accept contributions in respect of such costs
charges or expenses from the Principal Employer or may arrange with the
Principal Employer for such costs charges or expenses to be paid and
borne by the Principal Employer in such manner and in such proportions as
the Principal Employer may determine.
16.2 TAXATION
The Trustee may make provision in such manner as it considers appropriate
to allow for any anticipated or future liability for Taxation in respect
of the Fund and will have power to pay any Taxation in respect of the
Fund out of the Fund. The Trustee may debit a Member's Voluntary
Contribution Account and the Investment Income of the Fund in such manner
as it considers appropriate to reflect the payment of or the making of
any provision for any such Taxation. The Trustee will not be liable to
account to any Member or any other person for any payments made by the
Trustee in good faith to any duly empowered fiscal authority of the
Commonwealth of Australia or any State or Territory of it or any other
country or part of a country for Taxation or any other charges upon
the Fund or for or on account of the retention of any moneys or assets in
the Fund to meet any prospective liability on the part of the Trustee in
relation to the Fund to such fiscal authority, notwithstanding that any
such payment or provision need not have been made.
17. FUND RECORDS
17.1 ISSUE OF RECEIPTS
A receipt given on behalf of the Fund by the Trustee or by any other
person who may from time to time be authorised by the Trustee in writing
to receive any moneys of the Fund will be a sufficient discharge to the
person by whom the moneys are paid.
17.2 RECORDS AND ACCOUNTS TO BE KEPT
The Trustee must:
(a) keep account of all moneys received for and disbursed from the Fund
and of all dealings in connection therewith;
(b) collect and pay promptly into a bank or other account of the Fund
all moneys from time to time due to the Fund;
(c) keep appropriate records books and accounts having regard to the
requirements of Relevant Law and make suitable arrangements for
custody of
- 28 -
documents relating to the investments of the Fund; and
(d) prepare accounts and statements in relation to the Fund in
accordance with Relevant Law.
17.3 AUDIT
The Trustee must cause the accounts and statements referred to in clause
17.2(d) to be audited by the Auditor at such time or times as required by
Relevant Law and the Auditor must give to the Trustee a report in respect
of each such audit. If the Auditor is satisfied that the annual return
prepared for the Fund for that particular year of income is true and fair
he will sign an audit certificate in the prescribed form for lodgement
with the Commissioner.
17.4 AVAILABILITY OF DEED
A copy of this Deed must be made available for inspection by any Member
on the request of that Member.
17.5 INFORMATION FOR TRUSTEE
The Principal Employer will as and when requested by the Trustee, give to
the Trustee all information in its power or possession which may, in the
opinion of the Trustee, be necessary or expedient for the management and
administration of the Fund. The Trustee may act upon any information
given to it by the Principal Employer pursuant to this Deed.
17.6 DISCLOSURE AND REPORTING REQUIREMENTS
The Trustee must provide to Members, former Members, the Principal
Employer, the Commissioner and any other persons who ask the Trustee
to provide them with information about the Fund such information in
relation to the conduct of the Fund and benefits payable from the Fund in
such form as required by Relevant Law.
18. APPOINTMENT OF AUDITOR
The Trustee must appoint an Auditor on such conditions as the Trustee
determines and who is both appropriately qualified and independent
according to the criteria specified by Relevant Law. The Auditor may be
a person or a firm.
19. COMPULSORY OR GOVERNMENT SUPERANNUATION
19.1 COMPULSORY SUPERANNUATION
Where at any time an obligation is imposed upon the Principal Employer to
make compulsory contributions to a superannuation fund other than this
Fund providing retirement death or disablement benefits in respect of
Members of the Fund, the Trustee may, as appropriate and taking into
account the advice of the Actuary, either immediately
- 29 -
agree to reduce the Principal Employer's contributions to the Fund by the
amount of the compulsory contribution being made to the other fund in
respect of those Members who are members of the other fund, or vary the
benefits payable under the Rules to take into account the benefits which
would be received from the other fund.
19.2 GOVERNMENT BENEFIT SCHEME
Where a scheme having government support or recognition whether in the
Commonwealth of Australia or any State or Territory of it or any other
place with which the activities of the Principal Employer are or may for
the time being be concerned ("GOVERNMENT SCHEME") provides or will
provide Members or their Dependants with benefits which in the sole
opinion of the Trustee are of a similar nature to any benefit provided
under this Deed, the Trustee with the consent of the Principal Employer
may alter or vary in any way whatsoever the provisions of this Deed which
in the sole discretion of the Trustee corresponds to the provisions of
the Government Scheme.
20. TERMINATION OF THE FUND
20.1 TERMINATION
If:
(a) the Principal Employer decides for any reason to terminate the Fund
and gives one month's written notice to the Trustee of its intention
to do so; or
(b) all of the Employers terminate their contributions to the Fund
pursuant to clause 4.7,
then:
(c) the Fund will be closed to new entrants from a date being the
expiration of the one month's notice or the effective date of
termination of contributions as the case may be ("CLOSURE DATE");
(d) no further contributions by and in respect of the Members will be
accepted after the Closure Date, but payments due on or before the
Closure Date will not be affected;
(e) the Trustee must cause a valuation to be made of the assets of the
Fund (after the payment of all expenses incurred as a result of
winding up the Fund);
(f) the Trustee must, after considering the advice of the Actuary,
allocate to Members such part or whole of the value of the Fund as
ascertained by the valuation in such shares and proportions and in
such manner as the Trustee considers to be fair and equitable;
(g) the Trustee must then allocate any surplus amount remaining the Fund
to any Member, or to any one or more of the Dependants or legal
personal
- 30 -
representatives of any deceased Member, in such shares and
proportions as the Trustee in its absolute discretion determines;
(h) the amounts so allocated under paragraphs (f) and (g) will be held
in trust and invested by the Trustee as authorised by this Deed, but
any amount allocated to a Dependant or the legal personal
representatives of a deceased Member may be paid immediately; and
(i) the amount so allocated to a Member, plus any accretion and minus
any diminution, will subject to the other provisions of this Deed
and the Rules be dealt with in the same manner as a benefit in
respect of the Member which would otherwise (but for the operation
of this clause 20.1) have become payable under the Rules.
20.2 TRUSTEE'S ARRANGEMENTS AND DECISION
(a) Any amounts paid to any person under clause 20.1 will be in such
form and will be provided by such arrangements as the Trustee
determines.
(b) Payments under clause 20.1 will constitute the final resolution of
any claim to rights or benefits under this Deed and will be a
complete discharge by the Trustee of its obligations under this
Deed.
(c) All decision of the Trustee under clause 20.1 and this clause 20.2
will be final and binding on all parties.
21. AMENDMENTS
21.1 AMENDMENTS TO THE TRUST DEED
The provisions of this Deed including this clause may be amended with
immediate, prospective or, to such extent as the law allows,
retrospective effect from time to time by the Trustee, with the written
consent of the Principal Employer, by deed executed by the Trustee, but
no amendment ("AMENDMENT") may be made:
(a) which is not permitted by Relevant Law; or
(b) which will impose any increase in liability on any Employer or any
Member to contribute to the Fund without the Employer's or Member's
consent;
(c) which would in the opinion of the Trustee be to the detriment of the
Members or their Dependants generally;
(d) which would result in any retrospective reduction of any Member's
accrued benefits or of retirement benefits in respect of past
membership without the prior written consent of the Commissioner or
without the consent of all of the Members of the Fund.
- 31 -
21.2 NOTICE TO MEMBERS
The Trustee must promptly give the Members written notice of any such
Amendment if required pursuant to Relevant Law to do so.
22. RELATIONSHIP BETWEEN EMPLOYER AND EMPLOYEE
22.1 EMPLOYER'S POWERS NOT PREJUDICED
Nothing in this Deed will affect the powers of the Employer with regard
to the remuneration, terms of employment or dismissal of an Employee or
any other dealings between the Employer and Employee. The existence or
cessation of any actual or prospective or possible benefit under the Fund
will not be grounds for claiming or increasing damages in any action
brought against the Employer in respect of any termination of employment
or otherwise.
22.2 WORK-RELATED CLAIMS
Nothing in this Deed will in any way affect the right of a Member or his
or her personal representative to claim damages or compensation under
common law or under any workers' compensation legislation or any other
statute in force governing compensation to a Member injured or killed by
an accident arising out of or in the course of his or her employment with
the Employer.
23. PROPER LAW
This Deed will be governed and construed and will take effect in
accordance with the laws of South Australia. The Principal Employer, the
Trustee, Members and former Members and their Dependants and Legal
Personal Representatives must accept the jurisdiction of the Courts of
that State. Section 35b of the Trustee Act 1936 of South Australia has no
application to this Deed.
24. RELEVANT LAW
Notwithstanding any other provision of this Deed and in addition to the
powers and discretions conferred upon the Trustee by this Deed, the
Trustee will be empowered but not, except as provided in this Deed,
required to do or procure to be done or refrain from doing such acts
matters and things as in the opinion of the Trustee may be necessary or
desirable:
(a) to enable the Fund to become, and continue to be, a regulated
superannuation fund; and
(b) to comply with or satisfy any provision or requirement of Relevant
Law or of the Commissioner.
FIRST SCHEDULE
1. LEAVING SERVICE BENEFIT - CATEGORIES 1, 2, 3, 4, AND 7 MEMBERS
1.1 Subject to rule 1.2 and rule 1.3, if a Member, other than a Category 5
or Category 6 Member, leaves Service on or before that Member's Normal
Retirement Date, the Trustee must pay to that Member a benefit equal to
the sum of:
(a) 20% of the Member's Final Average Salary multiplied by his or her
period of Membership as a Category 1 Member; and
(b) 17.5% of the Member's Final Average Salary multiplied by his or her
period of Membership as a Category 2 Member; and
(c) 15% of the Member's Final Average Salary multiplied by his or her
period of Membership as a Category 3 Member; and
(d) 12.5% of the Member's Final Average Salary multiplied by his or her
period of Membership as a Category 4 Member; and
(e) 10% of the Member's Final Average Salary multiplied by his or her
period of Membership as a Category 7 Member; and
(f) an amount determined by multiplying the Member's Final Average
Salary by his or her Accrued Benefit Multiple (if any).
For the purposes of this rule 1.1, a Member's period of Membership in any
category will be measured in years and any fraction of a year which is a
complete month.
1.2 If a Member, other than a Category 5 or Category 6 Member, leaves Service
before attaining age 55 (other than in circumstances in which a benefit
would be payable under rule 4), the benefits which would otherwise be
payable in accordance with rule 1.1 will be reduced by 1% (on a simple
basis) for each whole year by which the Member's age as at the date of
leaving Service is less than age 55, but such reduction will not in any
event exceed 20%.
1.3 When a Category 1 Member leaves Service, the benefit which he or she will
receive pursuant to rule 1.1, reduced if appropriate by rule 1.2, will
not exceed seven times his or her Final Average Salary multiplied, if the
Member has left Service before his or her Normal Retirement Date, by:
FM
---
PFM
- 2 -
where: FM means the period of the Member's actual Membership; and
PFM means the period of Membership which the Member would
have had had he or she remained a Member until his or
her Normal Retirement Date.
2. LEAVING SERVICE BENEFITS - CATEGORY 5 MEMBERS
2.1 If a Category 5 Member leaves Service:
(a) on that Member's Normal Retirement Date; or
(b) after attaining age 60; or
(c) after attaining age 55 and obtaining the Employer's consent to early
retirement,
the Trustee must pay to that Member a benefit equal to 7.5% of the
Member's Final Average Salary multiplied by his or her period of Service.
For the purposes of this rule 2, a Member's period of Service will be
measured in years and any fraction of a year which is a complete month,
and will include Service both with an Employer and also with either or
both of Berri Renmano Ltd and Thomas Hardy & Sons Pty Ltd.
2.2 If a Category 5 Member leaves Service in circumstances that do not
entitle that Member to a benefit under either rule 2.1 or rule 4, then
that Member will be entitled to receive a lump sum benefit in accordance
with the following provisions:
(a) If the Member left Service as a result his or her illness or injury
(proof of which is provided to the reasonable satisfaction of the
Trustee) or, in the reasonable opinion of the Trustee, on account of
retrenchment of staff by the Employer, the Trustee must pay to that
Member a benefit equal to the greater of:
(i) twice the amount then standing to the credit of the Member's
Compulsory Member Contribution Account; and
(ii) 7.5% of the Member's Final Average Salary multiplied by his or
her period of Service, reduced by 3% (on a simple basis) for
each whole year (and proportionately for each complete month
in any fractions of a year) by which the Member's age as at
the date of leaving Service is less than age 55, but such
reduction will not in any event exceed 20%.
(b) Otherwise, the Trustee must pay to that Member a benefit calculated
pursuant to the following formula:
CMCA X VF
- 3-
where: CMCA is the amount then standing to the credit of his or her
Compulsory Member Contribution Account; and
VF is the Member's vesting factor determined by reference
to the following table and having regard to the
Member's complete years of Membership as at the
relevant date:
COMPLETE YEARS OF MEMBERSHIP VESTING FACTOR
less than 1 100%
1 110%
2 120%
3 130%
4 140%
5 150%
6 160%
7 170%
8 180%
9 190%
10 or more 200%
(c) Notwithstanding rule 2.2(b) above, a Category 5 Member's benefit
under that sub-rule will not be greater than 7.5% of the Member's
Final Average Salary multiplied by his or her period of Service,
reduced by 3% (on a simple basis) for each whole year (and
proportionately for each complete month in any fractions of a year)
by which the Member's age as at the date of leaving Service is less
than age 55, but such reduction will not in any event exceed 20%.
2.3 Notwithstanding rule 2.1 and rule 2.2, a Category 5 Member's benefit
under this rule 2 will not be less than the sum of the amount then
standing to the credit of the Member's Compulsory Member Contribution
Account and the amount then standing to the credit of the Member's
Compulsory Employer Contribution Account.
3. LATE RETIREMENT - CATEGORIES 1, 2, 3, 4, 5 AND 7 MEMBERS
If a Member, other than a Category 6 Member, remains in Service after
that Member's Normal Retirement Date:
(a) as at that Member's Normal Retirement Date, the Trustee must credit
to that Member's Voluntary Contribution Account the amount which
that Member would have received under either rule 1.1 or rule 2.1
had he or she left Service on his or her Normal Retirement Date;
and
(b) when the Member subsequently leaves Service the Member will only be
entitled to receive a benefit in accordance with rule 6.
- 4 -
4. DEATH OR DISABLEMENT - CATEGORIES 1, 2, 3, 4, 5 AND 7 MEMBERS
4.1 If a Member, other than a Category 6 Member, dies or becomes Totally and
Permanently Disabled while in Service before attaining his or her Normal
Retirement Date, the Trustee must, subject to rule 4.2, pay a lump sum
from the Fund which is equal to the amount which would have been payable
by the Trustee to that Member at his or her Normal Retirement Date under
rule 1 or rule 2, which amount will be determined assuming that:
(a) the Member would have continued in Service until his or her Normal
Retirement Date;
(b) the Member's Annual Salary at the date of death or disablement would
have remained unaltered until his or her Normal Retirement Date; and
(c) the Member's category of Membership at the date of death or
disablement would have remained unaltered until his or her Normal
Retirement Date.
4.2 If a Member becomes entitled to a benefit under Rule 4.1, the benefit
payable will be adjusted in such manner as the Trustee considers
equitable having regard to the amount of the insurance granted by the
relevant Insurer under the Policy and the conditions relating to it.
5. LEAVING SERVICE BENEFIT - CATEGORY 6 MEMBERS
5.1 If a Category 6 Member leaves Service in any circumstances, he or she
is entitled to a lump sum benefit which is equal to the amount (if any)
standing to the credit of the Member's Voluntary Contribution Account.
5.2 If a Category 6 Member dies or becomes Totally and Permanently Disabled
while in Service before attaining his or her Normal Retirement Date, the
Trustee must, in addition to the benefit payable under rule 5.1, pay to
the Member or to his or her personal representatives an additional amount
which is equal to the amount (if any) which the Trustee receives under a
Policy in relation to the Member's death or Total and Permanent
Disablement (except to the extent that any such amount is already
reflected in the amount standing to the credit of the Member's Voluntary
Contribution Account).
6. ADDITIONAL BENEFIT - CATEGORIES 1, 2, 3, 4, 5 AND 7 MEMBERS
6.1 Regardless of the circumstance in which a Member, other than a Category
6 Member, leaves Service, in addition to the benefit to which the Member
is entitled under these rules, the Trustee must, subject to rule 6.2, pay
an additional lump sum benefit which is equal to the amount (if any)
standing to the credit of the Member's Voluntary Contribution Account.
6.2 No benefit will be payable under rule 6.1 simply because a Member
becomes entitled to a benefit under rule 7.
- 5 -
7. TEMPORARY DISABLEMENT - CATEGORIES 1, 2, 3, 4, 5 AND 7 MEMBERS
7.1 Subject to rule 7.2 and rule 7.4, if a Member, other than a Category 6
Member, becomes Temporarily Totally Disabled while in the Service before
his or her Normal Retirement Date, the Trustee must pay to that Member an
annual income equal to 75% of the Member's Salary.
7.2 If a Member who would otherwise be entitled to receive a benefit under
rule 7.1 is also receiving any one or more of:
(a) a benefit under any statutory provision for workers' compensation;
(b) any sick leave payments from his or her Employer; or
(c) any other similar compensation in relation to his or her
disablement,
the annual income payable under rule 7.1 must be reduced by an amount
equal to the annual equivalent of the workers' compensation so payable or
by an amount equal to the other payment or compensation so payable.
7.3 Any annual income payable under this rule 7 will be paid by equal monthly
instalments in arrears, commencing on the first day of the month
immediately following the expiration of the 3 month period after the day
on which the Member becomes so disabled. The last monthly instalment
will be paid on the first day of the earliest month during which one of
the following events occurs:
(a) the Member returns to active Service;
(b) the Member takes up employment with another employer;
(c) the Member ceases to be Temporarily Totally Disabled;
(d) the Member ceases to be in Service;
(e) the Member dies;
(f) the Member reaches his or her Normal Retirement Date; or
(g) the Member receives his or her 24th monthly instalment under this
rule
7.4 Any benefit payable under this rule 7 in relation to the Member's
Temporary Disablement is to be wholly funded by the proceeds of a
Policy providing benefits in respect of disablement in relation to the
Members generally. Accordingly:
(a) notwithstanding rule 7.1, the Trustee will not be required to pay
any amount to a Member under that rule which exceeds the amount
which the Trustee receives under that Policy in relation to the
Member's disability; and
- 5 -
(b) notwithstanding rule 7.1, if the Trustee is unable to cover a Member
under that Policy, that Member will not receive a benefit under
that rule.
8. MINIMUM BENEFIT
Despite anything to the contrary in these Rules, when a Member leaves
Service in any circumstances, the minimum benefit which must be provided
to or in respect of that Member will be the "minimum requisite benefit"
as specified in the Benefit Certificate which:
(a) relates to the Fund;
(b) is or has been prepared for the Fund by the Actuary in accordance
with the requirements of the SG Act; and
(c) is current at the time that the Member leaves Service.
9. AUGMENTATION
Subject to the requirements of Relevant Law, the Trustee may with the
approval of the Principal Employer and an Actuary augment from the Fund
at any time and from time to time the amount of any benefit payable to
or in respect of a Member, as long as the Principal Employer contributes
to the Fund such additional amount as is determined by an Actuary to be
required to provide such augmented benefit.
SECOND SCHEDULE
ACCRUED BENEFIT MULTIPLES
ANDERSON RV 0.529 HAYMAN DC 1.152 NUGENT TJ 1.256
ARBON AJ 0.587 HELLWEGE PR 0.656 ORCHARD CS 0.167
BAKER BT 1.152 HENSEL PR 1.094 PARENTE EC 0.987
BALSHAW TW 0.225 HORVAT I 1.817 PETERS-LIDDANE VG 0.094
BARNARD NN 0.075 HOWARD L 0.5 PRESLEY J 0.6
BARR AA 0.896 HULSHOF F 0.573 RAMSAY AP 0.02
BAYLIS SF 0.569 HUMPHRYS J 0.802 RANDELL SJ 1.069
BECKER TG 2.664 JAMES TWB 1.567 ROBINSON DJ 1.363
BECKMAN TJ 2.297 JENNINGS RA 0.385 RODWELL B 0.145
BECKWITH P 0.102 JONES AT 2.406 ROSS FM 0.657
BEENHAM GR 1.737 KASSEBAUM PG 0.683 ROWE RJ 0.657
BESWICK JA 0.667 KENNAR AJ 0.927 SCAMBLER G 0.656
BEUTEL LS 2.25 KENNEDY AM 0.787 SCAMMELL MD 1.217
BOYLES D 0.982 KENNEDY SR 1.272 SHARP RB 1.55
BRADLEY M 0.75 KNUTSON GR 1.933 SMALLACOMBE DR 0.094
BRIDESON CI 0.229 KOERNER JF 0.656 SMALLACOMBE KR 1.677
BRUHN MM 1.902 KRETSCHMER MJ 0.469 SMITH RN 0.656
BURNETT AJ 0.969 KURTZER LJ 1.492 SMITH I 0.656
CALOGHIRIS M 0.87 LAPSLEY PJ 0.74 SOMERVILLE CM 0.145
CICCARELLI J 0.677 LEMON AL 0.525 SPARROW SP 0.115
CLARK TB 0.85 LINDSAY JP 0.025 SPARROW RJ 2.477
COCK A 0.706 LINDSAY N 0.145 STANDFIELD RJ 2.679
COOK PM 0.467 LOVERING IC 0.969 STARKIE BJ 0.979
COOK RS 0.85 LUCK A 0.438 STELLA R 0.927
COOMBS WF 2.121 MACHIN SPA 0.24 STEVENS GR 0.656
DAVIES SJ 1.875 MACLEAN HA 0.01 SULLIVAN LM 1.221
DAWSON PJ 0.527 MADDOCKS AP 0.717 THIELE AJ 0.125
DE MAMIEL BW 1.579 MAIO A 0.359 TSACONAS CG 0.225
DEERING GL 0.956 MARKHAM TR 1.158 VAN DER HEIDEN P 0.698
DEMPSEY CK 0.85 MARLING RD 1.682 VOGT IR 0.417
DOUGLASS P 0.688 MATTHEWS HT 0.148 VOIGT MA 1.896
DUNDAS W 0.657 MAY RA 1.682 WARR RJ 0.021
EDMONDS TR 1.652 MCARTHUR TJ 0.156 WASLEY AK 1.549
FALLER MA 0.614 MCCALLUM DR 1.402 WHEATLEY DJ 0.531
FINNIS DJ 0.448 MILLAR SB 0.277 WIGGINS BK 0.198
FRASER RA 2.209 MONTAGUE R 0.708 WILDEN WR 1.406
GIBBONS B 1.656 MURPHY K 0.781 WILSON DM 0.35
GOLDSPINK KM 0.083 NEWTON TC 1.254 WOODS DC 0.867
GUTHRIDGE GJ 0.975 NOLAN JB 0.656 WRIGHT BA 0.146
HARDY WD 2.704 NORTHEY J 1.704 YOUNG WB 2.216
HARPER JW 0.675 NOTTAGE TH 1.425
BRL HARDY SUPERANNUATION FUND
AMENDING DEED NO. 5
BETWEEN
BRL HARDY LIMITED
ACN 008 273 907
("PRINCIPAL EMPLOYER")
AND
BRL HARDY SUPERANNUATION PTY. LTD.
ACN 058 898 767
("TRUSTEE")
1
THIS AMENDING DEED is made on 23 December 1999
BETWEEN: BRL HARDY LIMITED (ACN 008 273 907) of Reynella Road, Reynella, South
Australia ("PRINCIPAL EMPLOYER");
AND: BRL HARDY SUPERANNUATION PTY. LTD. (ACN 058 898 767) Reynella Road,
Reynella, South Australia ("TRUSTEE").
RECITALS:
A. By a Trust Deed dated 1 July 1982 ("TRUST DEED") there was established a
fund now known as the BRL Hardy Superannuation Fund ("FUND").
B. The Trust Deed has been amended by Deeds dated 6 June 1990, 31 March
1993, 8 June 1994 and 7 October 1998 (the Trust Deed as amended being
called the "PRINCIPAL DEED").
C. The Trustee is the present Trustee of the Fund.
D. Clause 21 of the Principal Deed provides that the Trustee , with the
written consent of the Principal Employer, may at any time by deed amend
the Principal Deed subject to the restrictions contained in that clause.
E. The Principal Employer and the Trustee desire to amend the provisions of
the Principal Deed as set out below and are satisfied that these
amendments are made in compliance with Clause 21.
OPERATIVE PROVISIONS:
1. The Trustee, with the consent of the Principal Employer, amends the
Principal Deed in the following manner:
(a) Delete "Superannuation Entities (Taxation) Act 1987" in the
definition of "Act" in clause 1.1 and substitute "Superannuation
(Excluded Funds) Taxation Act 1987".
(b) Delete "Insurance and Superannuation Commissioner" in the definition
of "Commissioner" in clause 1.1 and substitute "Australian
Securities and Investments Commission".
(c) Insert the following definition immediately before the definition of
"Deed" in clause 1.1:
""CONTRIBUTION PERCENTAGE" means in relation to:
(a) a Sub-category 8C Member - 11.5%; or
2
(b) a Sub-category 8D Member - 9%,
plus an additional 1% in each case if the Member is also a
Transferred Member.".
(d) Insert the following definitions immediately before the definition
of "Insurer" in clause 1.1:
""FUTURE SERVICE MULTIPLE" means, in relation to a Category 8
Member, the Member's Insurance Percentage multiplied by the
number of years (including any fraction of a year being complete
months) from the date of the Member's death or disablement until
the date which would have been the Member's Normal Retirement Date.
"INSURANCE PERCENTAGE" means in relation to:
(a) a Sub-category 8A Member - 20%;
(b) a Sub-category 8B Member - 17.5%;
(c) a Sub-category 8C Member - 15%; or
(d) a Sub-category 8D Member - 12.5%.".
(e) Insert the following definition immediately before the definition of
"Trustee" in clause 1.1:
""TRANSFERRED MEMBER" means a Member who has transferred to Category
8 in accordance with clause 3.3(d).".
(f) Insert the following definition immediately before clause 1.2:
""VOLUNTARY INSURED AMOUNT" means, in relation to a Category 8
Member, an amount payable in respect of the Member under a Policy in
relation to the Member's death or Total And Permanent Disablement,
such amount being subject to agreement between that Member and the
Trustee.".
(g) Insert "in addition to paragraph (d)," at the beginning of clause
3.3(b)(i).
(h) Delete clause 3.3(c) and substitute the following clauses:
"(c) As from:
(i) 1 July 1997, there will be 7 categories of membership;
and
(ii) 1 July 1999, there will be 8 categories of membership
(further divided into 4 sub-categories of membership);
and
with the benefits for each category (and sub-category) of
member being as set out in the rules.
(d) Any Employee who:
(i) is a Member of a Category other than Category 8:
(A) on 30 September 1999; or
(B) after 30 September 1999 and the Principal Employer
approves of this clause applying to that Member;
and
(ii) agrees that on becoming a Category 8 Member he or she
will relinquish his or her rights and the rights of his
or her dependants and legal personal representatives to
receive any benefit under his or her existing Category;
and
(iii) authorises and requests the transfer to Category 8 of
that part of the assets of the Fund which the Trustee
determines to be appropriate in all the circumstances,
shall be eligible to become a Category 8 Member and may make
written application in such form as the Trustee may require to
become a Member from such date as is approved by the Principal
Employer and upon acceptance of the aforesaid application by
the Trustee shall become a Category 8 Member.".
(i) Delete "4 or 6" in clause 4.1(a) and substitute "4, 6 or 8".
(j) Delete clause 4.2(b) and substitute the following clause:
"(b) each Employer must contribute to the Fund in each year on
behalf of each Category 6 or 8 Member the sum of:
(i) the minimum amount which the Employer is required to
contribute to the Fund on behalf of the Member in order
to avoid having to pay the charge under the SG Act in
relation to that Member; and
(ii) in relation to a Sub-category 8C or 8D Member, the
additional amount required to increase the total
contribution of the Employer under this paragraph (b) to
an amount equal to the Contribution Percentage
multiplied by the Member's Salary,
which contribution may be made (in whole or in part) following
agreement between the Principal Employer and the Trustee by
the application of an appropriate part of the surplus of the
Fund as determined having regard to appropriate actuarial
advice.".
2. The Trustee, with the consent of the Principal Employer, amends the Rules
of the Fund in the following manner:
(a) Delete "Category 5 or Category 6" in rule 1.1 and substitute
"Category 5, 6 or 8".
(b) Delete "Category 5 or Category 6" in rule 1.2 and substitute
"Category 5, 6 or 8".
(c) Delete "Category 6" in rule 3 and substitute "Category 6 or 8".
(d) Delete "Category 6" in rule 4.1 and substitute "Category 6 or 8".
(e) Delete "CATEGORY 6" in the heading to rule 5 and substitute
"CATEGORY 6 OR 8".
(f) Delete "Category 6" in rule 5.1 and substitute "Category 6 or 8".
(g) Insert the following rules immediately after rule 5.2:
"5.3 If a Category 8 Member dies or becomes Totally and Permanently
Disabled while in Service before attaining his or her Normal
Retirement Date, the Trustee must, in addition to the benefit
payable under rule 5.1, pay to the Member or to his or her
personal representatives an additional amount which is,
subject to rule 5.4, equal to the sum of:
(a) the Member's Salary at the date of death multiplied by
his or her Future Service Multiple; and
(b) any Voluntary Insured Amount.
5.4 The benefit payable to a Transferred Member under rule 5.3
(including the benefit payable under rule 5.1) may not be
less than the sum of:
(a) the benefit which would have been payable had the Member
died or become Totally and Permanently Disabled
immediately prior to becoming a Category 8 Member; and
(b) any Voluntary Insured Amount.".
(h) Delete "Category 6" in rule 6.1 and substitute "Category 6 or 8".
(i) Delete "5 and 7" in the heading to rule 7 and substitute "5, 7 and
8".
3. The alterations made to the Principal Deed and Rules governing the Fund
by this deed take effect on and from 1 July 1999.
EXECUTION:
Executed as a Deed.
THE COMMON SEAL of BRL HARDY )
LIMITED (ACN 008 273 907) was )
affixed in accordance with its Articles )
of Association in the presence of: )
/s/ John Whelan
- --------------------------------- Director
/s/ John Whelan
- --------------------------------- Secretary
THE COMMON SEAL of BRL HARDY )
SUPERANNUATION PTY. LTD. )
(ACN 058 898 767) was affixed in )
accordance with its Articles of )
Association in the presence of: )
/s/ (non-readable)
- --------------------------------- Director
/s/ John Whelan
- --------------------------------- Director/Secretary
BRL HARDY SUPERANNUATION FUND
AMENDING DEED NO. 6
BETWEEN
BRL HARDY LIMITED
ACN 008 273 907
("PRINCIPAL EMPLOYER")
AND
BRL HARDY SUPERANNUATION PTY. LTD.
ACN 058 898 767
("TRUSTEE")
1
THIS AMENDING DEED is made on 20th January 2003
BETWEEN: BRL HARDY LIMITED (ACN 008 273 907) of Reynella Road, Reynella, South
Australia ("PRINCIPAL EMPLOYER");
AND: BRL HARDY SUPERANNUATION PTY. LTD. (ACN 058 898 767) Reynella Road,
Reynella, South Australia ("TRUSTEE").
RECITALS:
A. By a Trust Deed dated 1 July 1982 ("TRUST DEED") there was established a
fund now known as the BRL Hardy Superannuation Fund ("FUND").
B. The Trust Deed has been amended by Deeds dated 6 June 1990, 31 March
1993, 8 June 1994, 7 October 1998 and 23 December 1999 (the Trust Deed as
amended being called the "PRINCIPAL DEED").
C. The Trustee is the present Trustee of the Fund.
D. Clause 21 of the Principal Deed provides that the Trustee , with the
written consent of the Principal Employer, may at any time by deed amend
the Principal Deed subject to the restrictions contained in that clause.
E. The Principal Employer and the Trustee desire to amend the provisions of
the Principal Deed as set out below in order to comply with the
requirements imposed on superannuation fund trustees under Part VIIIB of
the Family Law Act 1975 and associated Relevant Law and are satisfied
that these amendments are made in compliance with Clause 21.
OPERATIVE PROVISIONS:
A. With effect on and from the date hereof clause 1.1 of the Principal Deed
is amended by adding", Corporations Act 2001 and Family Law Act 1975"
immediately after "Superannuation Entities (Taxation) Act 1987" in the
definition of "Act".
B. With effect from 28 December 2002, the Deed is amended as follows:
1. (a) inserting into clause 1.1, the following new definitions in the
appropriate alphabetical order:
""NON-MEMBER SPOUSE" has the meaning given to those words as defined
under the Family Law Act 1975 and the regulations made thereunder.
"SUPERANNUATION INTEREST" has the meaning given to those words as
defined under the Family Law Act 1975 and the regulations made
thereunder.
"TRANSFERABLE BENEFIT" means transferable benefit as that term is
defined under the Superannuation Industry (Supervision) Act and the
regulations made thereunder."; and
(b) Adding "Subject to clause 25.1(b) a Non-Member Spouse is not a
Member for the purposes of the Deed" at the end of the definition of
"Member".
2. The following new clause 25 is inserted immediately after clause 24:
"25. VARIATION OF BENEFITS PURSUANT TO FAMILY LAW
25.1 (a) Subject to paragraph (b), the Trustee must not create a new
interest in the Fund for or in respect of a Non-Member Spouse
under this clause 25 or make a Non-Member Spouse a Member of
the Fund.
(b) A Non-Member Spouse to whom this clause 25 applies and who is
already a Member shall continue as a Member for the purposes
of the Deed other than in respect of any amount determined
under this clause 25 in respect of the Non-Member Spouse
unless otherwise decided by the Trustee pursuant to sub-clause
25.2(d)(iv).
25.2 Notwithstanding any other provisions of the Deed, but subject to
clause 24, the Trustee is empowered to do or to procure to be done
any acts, matters or things that are necessary or desirable in
order to comply with the Relevant Law including (but not limited
to):
(a) providing information related to a Member's Superannuation
Interest in the Fund in accordance with and as required by the
Relevant Law. For the purpose of any information provided
under this sub-paragraph " accrued benefit multiple" as that
term is defined in the Family Law Act 1975 and the regulations
made thereunder shall be treated as a reference to such
multiple as may be derived from the provisions of the Deed and
the Rules used for the purpose of the calculation of a
Member's retirement benefit but only taking into account the
Member's Fund Membership (and any other period or periods and
past benefit multiples that are relevant to the multiple
calculation in respect of the Member) under the Deed and the
Rules for the period up to and including the "appropriate
date" (as that term is defined in the Family Law
(Superannuation) Regulations 2001) and where necessary after
obtaining the advice of the Actuary;
(b) flagging a Member's Superannuation Interest or lifting a flag
on a Member's Superannuation Interest or benefit in the Fund
where and as required by the Relevant Law;
(c) adjusting or reducing any Member's Superannuation Interest
(including any insured benefit) or any other amount in respect
of a Member in the Fund to take account of any amount the
Trustee considers represents the amount to which a Non-Member
Spouse is entitled being calculated having regard to the
requirements of the Relevant Law and any acts, matters or
things done pursuant to this clause 25 and the Deed; and
(d) subject to paragraph (c):
(i) transferring all of the lump sum amount which the
Trustee considers represents the Transferable Benefit in
respect of the Non-Member Spouse (or such other amount
as the Trustee may determine) to another Superannuation
Fund or other superannuation arrangement (including an
eligible rollover fund) subject to and in accordance
with the requirements of the Relevant Law whether with
or without the consent of the Non-Member Spouse; or
(ii) paying to the Non-Member Spouse an amount which the
Trustee considers represents the lump sum amount to
which the Non-Member Spouse is entitled (or such other
amount or amounts as the Trustee may determine) subject
to and in accordance with the requirements of the
Relevant Law and the Deed; or
(iii) if sub-paragraph (iv) does not apply, recording in the
records of the Fund the amount that the Trustee
considers represents the amount to which the Non-Member
Spouse is entitled having regard to the requirements of
the Relevant Law and adjusting or doing any other act,
matter or thing with respect to that record until the
Trustee determines to pay or transfer that amount from
the Fund as provided under clause 25.2(d)(i) or (d)(ii)
above;
(iv) where a Non-Member Spouse is already a Member, the
Trustee may transfer all of the lump sum amount which
the Trustee considers represents the Transferable
Benefit (or such other amount as the Trustee may
determine) in respect of the Non-Member Spouse to an
account held or established in respect of the Non-Member
Spouse within the Fund (or be provided in such other
manner as the Trustee determines)and such amount must be
maintained and adjusted by the Trustee on such basis as
the Trustee determines (including allocating any
investment earnings under the Deed and imposing any fees
incurred under clause 25.2(e) in respect of the
Non-Member Spouse) until payment or transfer from the
Fund pursuant to clause 25.2(d)(i) or (d)(ii);
(e) imposing any fees, (including charges, taxes or other costs)
in relation to any acts, matters or things done by the Trustee
under this clause 25 on such terms and conditions as the
Trustee determines (including by deduction from any Member's
account, interest or benefit in the Fund or from the amount to
which a Non-Member Spouse is entitled) subject to the Relevant
Law.
25.3 (a) Except where a Non-Member Spouse is already a Member, a
Non-Member Spouse is not a Member or eligible to be a Member.
(b) For the purposes of this clause 25 and any amount determined
under this clause a Non-Member Spouse only has rights to
information and other rights as prescribed by the Relevant
Law and under this clause 25 and has no other rights, claims
or entitlements against the Fund, the Trustee (or any person
acting on behalf of the Trustee) under the Deed."
EXECUTION:
Executed as a Deed.
THE COMMON SEAL of BRL HARDY )
LIMITED (ACN 008 273 907) was )
affixed in accordance with its Articles )
of Association in the presence of: )
/s/ John Whelan
- --------------------------------- Director
/s/ John Whelan
- --------------------------------- Secretary
THE COMMON SEAL of BRL HARDY )
SUPERANNUATION PTY. LTD. )
(ACN 058 898 767) was affixed in )
accordance with its Articles of )
Association in the presence of: )
/s/ Douglas McCallum
- --------------------------------- Director
/s/ John Whelan
- --------------------------------- Secretary
BRL HARDY SUPERANNUATION FUND
AMENDING DEED NO. 7
BETWEEN
HARDY WINE COMPANY LTD.
ACN 008 273 907
(the "PRINCIPAL EMPLOYER")
AND
BRL HARDY SUPERANNUATION PTY. LTD.
ACN 058 898 767
(the "TRUSTEE")
THIS AMENDING DEED is made on 9th February 2004
BETWEEN: HARDY WINE COMPANY LIMITED (ACN 008 273 907) of Reynell Road,
Reynella, South Australia ("PRINCIPAL EMPLOYER");
AND: BRL HARDY SUPERANNUATION PTY. LTD. (ACN 058 898 767) Reynella Road,
Reynella, South Australia ("TRUSTEE").
RECITALS:
A. By a Trust Deed dated 1 July 1982 ("TRUST DEED") there was established a
fund now known as the BRL Hardy Superannuation Fund ("FUND").
B. The Trust Deed has been amended by Deeds dated 6 June 1990, 31 March
1993, 8 June 1994, 7 October 1998, 23 December 1999 and 20 January 2003
(the Trust Deed as amended being called the "PRINCIPAL DEED").
C. The Trustee is the present Trustee of the Fund.
D. Clause 21 of the Principal Deed provides that the Trustee , with the
written consent of the Principal Employer, may at any time by deed amend
the Principal Deed subject to the restrictions contained in that clause.
E. The Principal Employer and the Trustee desire to amend the provisions of
the Principal Deed as set out below and are satisfied that these
amendments are made in compliance with Clause 21.
OPERATIVE PROVISIONS:
With effect on and from the date of this Deed, the Principal Deed is amended by
adding the following new clause 5.3 immediately after clause 5.2:
"5.3 Notwithstanding any provision of this Deed, but subject always to the
Relevant Law, the Trustee may transfer a Member's or beneficiary's
benefits (or such greater amount as agreed between the Trustee and the
Principal Employer whether on an allocated or unallocated basis) to an
Other Fund as permitted by the Relevant Law (including where the Trustee
forms the view that the Other Fund to which the transfer is to be made is
a "successor fund" as that term is defined by the Relevant Law)".
EXECUTION:
Executed as a Deed.
THE COMMON SEAL of HARDY WINE )
COMPANY LTD. (ACN 008 273 907) was )
affixed in accordance with its Constitution )
in the presence of: )
/s/ David Woods
- --------------------------------- Director
/s/ John Whelan
- --------------------------------- Secretary
THE COMMON SEAL of BRL HARDY )
SUPERANNUATION PTY. LTD. )
(ACN 058 898 767) was affixed in )
accordance with its Constitution )
in the presence of: )
/s/ David Woods
- --------------------------------- Director
/s/ John Whelan
- --------------------------------- Secretary