Intensity and Authenticity: The Duty to Give Real and Genuine Consideration in the Context of Superannuation Trusts
Trusts & Trustees, Vol. 22, No. 4, pp. 406–415, May 2016
28 Pages Posted: 18 Sep 2019
Date Written: May 1, 2016
This article critically examines the suitability of the duty of a trustee to give real and genuine consideration when exercising discretionary powers in superannuation or pension trusts. The article reviews the rearticulation by the Australian High Court in Finch v Telstra of a ‘more intense’ real and consideration duty for superannuation trustees. It argues that this revised duty should be regarded as a temporary solution because longer term, the unique legal structure and social context of the superannuation trust demands judicial implementation of a substantively new, multilayered obligation that promotes reasonable, fair, and informed decision-making.
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