Lost SMSF Deeds, Missing History and the Silent Risk Sitting in Your Client Files

By Grant Abbott – Chairman, SAPEPAA

Matthew Croker didn’t set out to end up in the Supreme Court.

Like most family business operators, he was simply trying to keep things moving. The Riverina Plaster Works Su

perannuation Fund had been around for decades — originally set up in 1979, back when superannuation was simpler, paperwork was physical, and no one was thinking about what would happen 40 years down the track. The fund had moved through generations, trustees had changed, companies had been restructured, and like so many SMSFs I see every day, it just kept going.

On the surface, everything looked fine.

The fund had assets. Members were drawing benefits. Returns were lodged.

But then came the question — the one question that changes everything:

“Where is the original deed… and how did we actually get to where we are today?”

And that’s when the problem started.

Because when Matthew and his advisers went looking, the story wasn’t complete. Some documents were there — enough to suggest a structure — but key pieces were missing. The 1990 and 1994 amending deeds couldn’t be found. Trustee changes had occurred, but not every step in that chain could be proven. The fund had been running for over 30 years, yet the legal pathway that supported it had gaps.

So the matter ended up before the Supreme Court in RPW Services Pty Ltd [2026] NSWSC 363.

Now, most advisers might think this is just another technical case about missing documents. It’s not. It goes right to the heart of what we do as SAPEPAA advisers — because it asks a far more fundamental question:

If you cannot prove the deed, the amendments and the trustee chain… do you actually have a valid trust at all? 

The Court was faced with a practical dilemma. On one hand, there were clear gaps in the documentary evidence. On the other, there was a fund that had operated for decades, with assets, members and a history that suggested things had probably been done correctly at the time. The judge wasn’t about to unravel 30 years of family wealth lightly.

And this is where the law stepped in — not perfectly, but pragmatically.

The Court relied heavily on what we call the presumption of regularity. In simple terms, if something has been operating for a long time and appears to have been conducted properly, the Court can infer that the necessary steps were taken, even if the paperwork is missing. This approach has been used before, including in cases like Re Thomson [2015] VSC 370, where historical trustee arrangements were accepted based on conduct and surrounding evidence rather than perfect documentation.

Now, that sounds comforting, but let me be very clear — this is not a planning strategy. It is a judicial fallback. Courts use it when they have no better option and when the alternative would create more injustice than certainty. You do not want your client’s wealth relying on a judge’s willingness to fill in the gaps.

The second concept the Court relied on is even more confronting for advisers — the doctrine of trustee de son tort. It’s an old concept, but incredibly relevant in modern SMSF practice. What it says is this: if you act as a trustee, control the assets, and behave as a trustee over time, the law may treat you as a trustee, even if your formal appointment was defective or cannot be proven.

That’s exactly what happened here. RPW Services had acted as trustee for over 30 years. It held the fund’s assets, administered the fund, and did so without claiming any personal benefit. Even if its original appointment in 1994 could not be perfectly established, the Court was prepared to recognise it as a trustee in substance.

Again, that might sound like a safety net. It isn’t.

A trustee de son tort carries all the liabilities of a properly appointed trustee — without the comfort of knowing their appointment is legally sound. If something goes wrong, there is no hiding behind defective paperwork. You are fully exposed.

So what did the Court ultimately do?

Rather than attempting to reconstruct every missing step in a 40-year history, the Court took a practical approach and granted judicial advice under section 63 of the Trustee Act 1925 (NSW). In effect, it said that the trustee was justified in continuing to manage the fund based on the 1994 deed and the later 2021 variation.

That gave the trustee comfort going forward. It did not magically fix the past.

And that distinction is critical.

Because what this case really exposes is not a legal loophole, but a systemic problem in how SMSFs and trust structures are managed over time. Most advisers, and I say this bluntly, work forward from whatever document is sitting in front of them. They assume the structure is valid because it has been operating for years. They rely on the latest deed, the latest accounts, the latest advice.

But in SAPEP, we don’t work forward.

We work back to the source.

We start with the original deed. We identify who had the power to appoint trustees. We track every change — every amendment, every corporate restructure, every transition — and we test whether each step was valid under the rules that applied at the time. Because if one link in that chain breaks, the consequences can be significant.

And those consequences are not theoretical.

If a trustee is not validly appointed, there is a real question about whether they hold legal title to the fund’s assets. If a company that once held assets has been deregistered, those assets can vest in the Commonwealth. If records have not been maintained properly, there are breaches of the SIS Act — not just technical ones, but structural ones relating to asset separation and record keeping.

Most importantly, this is not a single-generation problem.

The families we advise are not static. Businesses are sold, children come into the fund, marriages break down, estates are triggered. What looks like a minor documentation issue today becomes a major dispute tomorrow — usually at the worst possible time, when someone has died or assets need to be distributed.

That is why this case matters so much for SAPEPAA advisers.

It draws a line in the sand.

You are either:

• Accepting structures as they appear, or

• Reconstructing and validating them properly

Only one of those protects family wealth.

When I look at a file now, I am not interested in whether the fund lodged its last return on time. I want to know:

Where did this structure start? Who had the power to change it? And can we prove every step along the way?

If we can’t, then we have a risk. And once we identify that risk, we deal with it — properly, strategically, and often with the involvement of legal specialists like the team at LightYear Legal who understand how to reconstruct, confirm or, where necessary, reset the structure so it stands up to scrutiny.

Because here’s the reality.

The Croker family got through this. The Court gave them a pathway forward. But they relied on judicial discretion to do it. Another set of facts, another judge, or a more aggressive challenge, and the outcome could have been very different.

That’s not a position you want your client in.

If there is one takeaway from this case, it is this:

If you don’t know where the trust started, you don’t know what you are actually advising on.

And in our world, that’s not good enough.