Court orders reinstatement of super fund trustee

Mr Kyne stated that he was formerly employed by Leighton Contractors Pty Ltd, now known as CPB Contractors Pty Ltd, a wholly owned subsidiary of Leighton Holdings Limited, now known as CIMIC, and a member of the fund. Leighton Superannuation has since been deregistered.

In his statement of claim, Mr Kyne alleged that he received a letter inviting him to transfer from the defined benefits section of the fund to a new accumulated benefits section.

The letter enclosed a number of documents. One of those documents compared the benefits of the two sections.

According to his statement, the documents included a guarantee that, in the event that Mr Kyne transferred from the defined to the accumulated benefits section, any benefit payable to him on retrenchment would “not be less than that which would have been payable under the defined benefits section of the fund”.

In reliance on that guarantee, Mr Kyne said that he elected to transfer his membership from the defined benefits section to the accumulated benefits section and the respondents treated the election as effective from 1 July 1993.

Mr Kyne alleged that he was retrenched on 7 July 2014, but that the respondents failed to pay him his entitlements as a member of the fund and failed to honour the guarantee.

He contended that the respondents had thereby breached their contractual obligations and Leighton Superannuation, its duty as a trustee to adhere to the terms of the trust and that the respondents are estopped from refusing to pay him his entitlements under the guarantee.

He also contended that the respondents were liable to him in tort for negligent misstatement or negligence and that they have also engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) (TPA) or unconscionable conduct within the meaning of that term in the Australian Securities and Investments Commission Act 2001 (Cth), the TPA and the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Leighton Superannuation was voluntarily deregistered under s 601AA of the Corporations Act around 23 February 2012, reinstated pursuant to an order made by the court on 23 October 2013, but within two years, on 12 August 2015, it was voluntarily deregistered a second time and is still deregistered.

At the time of its most recent application for voluntary deregistration, the company secretary of the Leighton Group declared that Leighton Superannuation had no outstanding liabilities, had paid all fees and penalties under the Corporations Act, and was not a party to any legal proceedings.

With the company dissolved, Mr Kyne was unable to pursue his action against the company.

On 13 August 2020, Mr Kyne therefore filed an interlocutory application seeking an order under s 601AH(2) of the Corporations Act 2001 (Cth) to reinstate the registration of Leighton Superannuation.

The court found that Mr Kyne was a person aggrieved by the deregistration of the company.

“Put simply, Mr Kyne is a person aggrieved because his legal rights have been affected and because he has a genuine grievance that the dissolution has affected his interests,” Justice Anna Katzmann.

She also noted that there was no evidence that the company was insolvent at the time of deregistration or that any person was likely to be prejudiced by the company’s reinstatement.

Justice Katzmann was satisfied that the company’s registration should be reinstated.