Trustee Directors' Liability to Members

Abstract

This paper is concerned with the personal liability of the directors of a company that is trustee of an Australian superannuation fund to members of that fund. It identifies six ways in which such liability may arise: under the SIS Act duty of care; for dishonest or misleading conduct under the financial services laws; through the application of certain fiduciary proscriptions under general principles of trust law; under each of the limbs of the rule in Barnes v Addy (knowing receipt and knowing participation); and through involvement in a contravention by the trustee of certain provisions of SIS, the Corporations Act or the ASIC Act. The paper comments on the Cooper Review recommendations for reform in this area.