New section 67A & 67B provides that a fund can borrow money if: The Bare Trust Deed is a key document.
Care is required to ensure there are no adverse GST, taxation or stamp duty consequences.
The legal and beneficial interests in the property must be separated, so that an entity separate from the Superannuation Fund Trustee holds the legal title, while the Superannuation Fund Trustee holds the beneficial interest.
[3] A case that deals with the limited powers of a bare trustee to deal with trust assets is Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd,[4] which considered the law relating to the duties, powers and rights of a bare trustee in a winding up.
[5] This case is an important reminder to practitioners of some of the difficulties that can arise where an insolvent company owns property as a corporate trustee.