N7752
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 61 OF 2019(CC1)

IN THE MATTER OF TRUSTEES AND
EXECUTORS ACT 1961

AND
COMRADE TRUSTEES SERVICES LIMITED on behalf
of the Defined Pension Scheme Members of the Defence
Force Retirement Benefit Fund

Waigani:  Dingake J
2019   : 7 March

PRACTICE AND PROCEDURE – applicant seeking courts direction or opinion as to applicant’s intention to administer a special distribution from surplus funds held in Defence Retirement Benefit Fund to members of the Defined Benefit Pension Scheme – other interested parties would have an interest in the subject matter of this application – application moved pursuant to Section 46(1) of the Trustees & Executors Act 1961 – Trust deed and legislation do not have specific powers to make a distribution as planned and or resolved by applicant – applicant to serve court process on interested parties

Counsel:

Mr. Bernard Sinen, for the Applicant

7th March, 2019

1.   DINGAKE J:	 This is an unusual application. The applicant/plaintiff acting in terms of Section 46(1) of the Trustees & Executors Act 1961 and Order 15 Rule 2 (3) (d) and Order 12 Rule 1 of the National Court Rules 1983 (as amended) seeks the opinion, advice or direction of this Court with respect to the applicant’s intention to administer a special distribution from surplus funds in the sum of Five Million Kina (5 000 000.00) held in the Defence Force Retirement Benefits Fund to current members of the Defined Benefit Pension Scheme.

2.  There is no evidence that other possibly interested parties in this matter such as the Minister for Treasury, Defence and the Governor of the Bank of Papua New Guinea have been served with Court process. Indeed there appears to be no such legal requirement to serve them in an application moved in terms of Section 46(1) of the Trustees & Executors Act 1961.

3.  The applicant to its credit has, correctly in my view, informed the authorities referred to above of its intention to make a distribution as a once off payment to its members in the Defined Benefits Scheme in 2018, and or of its intention to approach the Court for its opinion, advice or directions. I have not had the benefit of the above mentioned authorities, views on this important matter regarding any possible legal disability to effect the resolution of the applicant.

4.   It is plain to me that the authorities referred to above would have an interest in the subject matter of this application.

5.   The Defence Force Retirement Benefits Fund (hereinafter referred to as the “Fund”) is structured as a trust for the benefit of its members and the applicant is a trustee.

6.   The trustee derives its powers primarily from the Deed of Trust. Other legislation, such as the Defence Force Retirement Benefits Act; Chapter 76 may also be applicable.

7.  I have considered all the above instruments in the context of the planned intention of the applicant to make a distribution as indicated earlier.

8.   I have read the Deed of Trust, more particularly, the provisions of Clause 5, thereof, dealing with powers and duties of the trustee.

9.   It would seem on a quick perusal of the Deed of Trust and the Legislation referred to above, in paragraph 6 of this judgment, that there is no specific power to make a distribution as planned and or resolved by the applicant.

10.   Ordinarily, the Courts would usually insist on a strict compliance with the terms of the Deed of Trust. 

11.   In this case ex abundai cautela and in the interest of justice, I think I should hear the position of the authorities listed in paragraph 2 herein, as to the legality of what the applicant plans to do.

12.   In the result, the Court issues the following directions:

1)	The applicant shall serve this process on:
a)	The Ministry/Minister of Treasury & Finance;
b)	The Ministry/Minister for Defence;
c)	The Bank of Papua New Guinea.
within 7 days from today, 8th of March, 2019.
2)	The aforesaid authorities, shall file their papers in response to the application, within 7 days of being served, stating their respective positions (if any);
3)	The applicant and the Legal representatives of the aforesaid authorities, shall file concise extract of submissions in support of their respective positions (if any) within 21 days from the 8th of March, 2019.
4)	The matter is set down for Directions hearing on the 12th April, 2019 to obtain date of hearing.
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Leahy Lewin Lowing Sullivan Lawyers:  Lawyers for the Applicant