UC Rusal Alumina Jamaica Ltd and Others v Wynette Miller and Others
| Jurisdiction | Jamaica |
| Judge | Panton P,Morrison JA,Dukharan JA |
| Judgment Date | 19 April 2013 |
| Neutral Citation | JM 2013 CA 46,[2013] JMCA Civ 14 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 7/2012 |
| Court | Court of Appeal (Jamaica) |
| Date | 19 April 2013 |
[2013] JMCA Civ 14
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Panton P
The Hon Mr Justice Morrison JA
The Hon Mr Justice Dukharan JA
SUPREME COURT CIVIL APPEAL NO 7/2012
In The Matter of the Trustee Act, Section 41
and
In The Matter of the Pensions (Superannuation Funds and Retirement Schemes) Act
and
In The Matter of a consolidating trust deed Between Glencore Alumina Jamaica Limited and Manchester Pension Trust Fund Limited dated 10 March 2005
and
and
and
and
and
and
and
and
and
Vincent Nelson QC , Stephen Shelton and Christopher Kelman instructed by Myers , Fletcher & Gordon for the appellants
B. St Michael Hylton QC and Sundiata Gibbs instructed by Michael Hylton & Associates for the respondents
PENSIONS - Pension funds - Interpretation of the rules of the Life Assurance and Pension Plan for Staff Employees of Alcan Jamaica Ltd. - Dispute on the actuarial surplus in the fund - Trust Deed - Trustee Act, S. 41 - Pension (Superannuation Funds and Retirement Schemes) Act - Consent Order
On 22 March 2013, it was announced by the court that this appeal would be dismissed, save as regards the question of costs. The court directed that the costs of all parties, both in this court and in the court below, should be agreed or taxed as between attorney and client and paid out of the pension fund.
Having read in draft the reasons for judgment written by my learned brother Morrison JA, I agree with them and have nothing to add.
This appeal concerns the proper interpretation of the rules of the Life Assurance and Pension Plan for Staff Employees of Alcan Jamaica Limited and Associated Companies in Jamaica (“the pension plan”), which was terminated with effect from 31 March 2010. The context of the dispute between the 1 st appellant (“UC Rusal”), which was the employer under the pension plan, and the respondents, who were the trustees of the pension plan as of the termination date, is an actuarial surplus in the fund of the pension plan (“the fund”) of $2,628,800,000.00. Before D.O. McIntosh J, the respondents contended for an interpretation of the rules of the pension plan by which approximately 97% of the surplus would be used to augment the benefits of members, while UC Rusal contended for an interpretation by which appproximately 45% of the surplus would be so used and 55% would revert to it. The respective positions on both sides were supported by actuarial recommendations. This is an appeal from the judgment of the learned trial judge, who (in a judgment occupying a single typed page) resolved the dispute in favour of the respondents.
On 31 December 1974, the pension plan was established under a deed of irrevocable trust (“the 1974 Trust Deed”) by Alcan Jamaica Limited, Sprostons (Jamaica) Limited and Alcan Products of Jamaica Limited (“the Alcan Associated Companies”), to provide pension benefits for their employees. The 5 th appellant was the trustee under the 1974 Trust Deed.
The 1974 Trust Deed was amended by various subsequent supplemental deeds and, by virtue of a trust deed dated 8 October 1986 (“the 1986 Trust Deed”), it was restated and continued, incorporating various amendments.
Between 1986 and 2005, various amendments were made to the 1986 Trust Deed. By Deed of Substitution dated 3 August 2001, between the Alcan Associated Companies (referred to in the deed as ‘the Old Principal Employer’), the 5 th appellant and Glencore Alumina Jamaica Limited (“Glencore”) (referred to in the deed as ‘the New Principal Employer’), Glencore was substituted for, and assumed the rights and obligations of, the Alcan Associated Companies under the pension plan, with effect from 1 September 2001.
On 10 March 2005, Glencore and the 5 th appellant entered into a Consolidating Trust Deed (“the 2005 Trust Deed”), which restated and consolidated the 1986 Trust Deed and all subsequent amendments to it. The 2005 Trust Deed was stated as governing all actions of the parties as of 31 August 2004, ‘and all benefits of employees of the Principal Employer and Associated Employers on or after the Consolidation Date’ (clause 1.1). The pension plan is now principally governed by the 2005 Trust Deed. Before going to the detail of the dispute between the parties, it might be helpful to indicate the relevant provisions, comparing them briefly with their predecessor provisions in the 1974 and 1986 Trust Deeds, as well as, so far as applicable, “The Rules of the Life Assurance and Pension Plan for Employees of Glencore Alumina Jamaica Limited” (“the Rules”).
Clause 18, which deals with “Priorities on Dissolution of the Fund”, falls to be read as a whole and, regrettably, I cannot avoid setting it out in its entirety:
‘18.1 In the event of the Fund at any time being dissolved as aforesaid the Trustee shall cause to be computed by the Actuary, the assets due in respect of each Member of the Plan as follows:
18.1.1 Assets in the Sub-Account for each Member's Voluntary Additional Contributions as provided for in Clause 3 hereof shall be allocated to the Member to whose credit the account stands.
18.1.2 In the computation the remaining assets shall be allocated so far as it has not already been done towards liabilities for pensions and other benefits in the following order of priority that is to say:-
(i) pensions whether in payment status or deferred to normal retirement date or other benefits under the RILA Plan (more particularly described in the Rules of the Plan);
(ii) employee contributions after the Commencing Date less payment made in respect of the employee other than payments in respect of benefits described in sub-paragraph (i) above all accumulated with interest;
(iii) to the extent not provided in sub-paragraphs (i) or (ii) above towards liabilities for pensions or persons already in receipt or entitled to be in receipt of or entitled to retire and commence receiving pension on the date of dissolution;
(iv) to the extent not provided in sub-paragraphs (i) or (ii) above towards liabilities for pensions payable at normal retirement date as defined in the Rules of the Plan to those whose employment has terminated and are entitled to or if their employment terminated would under the Rules of the Plan be entitled to a deferred pension at normal retirement date as defined in the Plan;
(v) all other benefits provided for under the Plan.
Liabilities for benefits referred to in sub-paragraphs (i), (iv), (v) above shall be increased as recommended by the Actuary to allow for the value of any options which would have been available to the Member.
18.1.3 Such part of the balance of the assets of the Fund not already allocated as above shall be allocated to augment proportionately the liabilities for pensions under (ii) of this clause for each Member subject always to such limitations as are consistent with the approval of the Fund by the Commissioner Taxpayer Audit & Assessment PROVIDED that such computations shall not create new liabilities to pensions or any new right in any Member to assets allocated in respect of him.
18.2 the Trustee shall then divide the Members into groups based on employment with the Associate Employer. The Members most recently employed by a particular Associated Employer are allocated to that Associated Employer.
18.3 assets, based on the computations in sub-clause 18.1 above in respect of the group of Members allocated to each Associated Employer shall be either:-
18.3.1 transferred by the Trustee to a scheme adopted by the particular Associated Employer and approved or capable of approval by the Commissioner Taxpayer Audit and Assessment under section 44 of the Income tax Act, or
18.3.2 be applied by the Trustee to provide the benefits computed in accordance with sub-clause 18.1.1 and 18.1.2 above to the Members in some other approved way. Any remaining assets shall be returned to the particular Associated Employer or at the request of that Employer shall be used to provide such additional benefits as the Trustee may see fit. Notwithstanding any provision in the Rules, benefits hereunder may, with the consent of the Trustee, to the extent permitted by Jamaican Law, be commuted for cash.
18.3.3 If there are no Associated Employers the balance remaining in the Fund after the payment of all benefits under sub-clauses 18.1.1 and 18.1.2 shall be paid to the Employer.’
Under the 1974 Trust Deed, the settlors of the trust, it will be recalled, were Alcan Jamaica Limited, Sprostons (Jamaica) Limited and Alcan Products of Jamaica Limited (together described as “the Associated Companies”). Clauses 18.1.1, 18.1.2 and 18.1.3 were also part of the 1974 Trust Deed, in virtually identical language, under the rubric “Priorities on dissolution of the Fund” and grouped together as part of clause 18(A). This was followed by clause 18(B), which required the trustees to divide the members into groups based on employment with the Associated Companies, and members most recently employed by a particular Associated Company allocated to that Associated Company. There was then clause 18(C), which required the assets, based on the computations in 18(A) in respect of the group of members allocated to each Associated Company, to be either (i) transferred to an approved scheme adopted by the particular Associated Company, or (ii) be applied to provide benefits computed in...
To continue reading
Request your trial
-
Junior Mills and Norval Thompson v Stainton Knott and Others
...be distinguished on its facts. Mr Barnes cited in support of his submissions, among others, the cases of UC Rusal v Miller and Others [2013] JMCA Civ 14, Crawford and Others v Financial Institutions Services Limited [2003] UKPC 49 and Maxwell Gayle and Others v Desnoes and Geddes Limited an......
-
Junior Mills and Norval Thompson v Stainton Knott & Anormp; Ors
...court has also accepted the principles laid down inBuckton. In UC Rusal Alumina Jamaica Limited and Others v Wynette Miller and Others [2013] JMCA Civ 14, Morrison JA (as he then was) referred to the relevant portion of the judgment of Kekewich J as ‘the classic statement’ in relation to th......
-
Delsha Annmarie Hyman Hall v Noel Carl Hall
...that the parties had only separated and no decree absolute has been granted. He relied on the case of Carol Stewart v Lauriston Stewart (2013) JMCA Civ 14 to support the position that even if the court rules that the statutory 50/50 rule does not apply, it is not the law that a short marria......