A prominent eastern gateway site to Bondi Junction could soon host a new eight-storey apartment project combining market and affordable housing, under new plans lodged with Waverley Council.

The proposal covers a 1,631 sqm amalgamated site across five properties at 2–6 Bondi Road and 75–77 Old South Head Road, including the corner of Ben Eden Street.&nbsp;

According to the Design Verification Statement by <a href="https://www.apartments.com.au/architects/tony-owen-partners">Tony Owen Partners</a>, the development will deliver a total of 56 apartments, incorporating 10 affordable dwellings. The project takes advantage of the NSW Government’s Housing SEPP, which provides a 30 per cent uplift in height and floor space ratio in exchange for the inclusion of affordable housing.

<img alt="Bondi Road, Bondi" data-entity-type="file" data-entity-uuid="64226782-681d-430f-a08b-31d007ba40e0" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Bondi%20Road%20Bondi%20site.png?VersionId=gCt8XpeE4jXEoao0FnG.Ij9mUr73CB68" />

The mix of apartments spans one-, two-, and three-bedroom configurations, with a layout designed to optimise amenity and environmental performance.&nbsp;88.5 per cent of units achieve natural cross ventilation, Tony Owen Partners notes in the statement, attributing the result to the site’s configuration and a high proportion of corner apartments.

The design also responds to the site’s transitional context, on the periphery of the high-rise Bondi Junction commercial core and adjoining the lower-scale Bellevue Hill precinct.&nbsp;

“The siting, scale, bulk, and massing of the proposed development is consistent with that anticipated for the area,” the statement reads, with the building’s height capped at 28.6 metres in line with the LEP controls including bonuses.

<img alt="Bondi Road building" data-entity-type="file" data-entity-uuid="083fb63f-8a64-4c21-9c09-83e379f1cedd" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Bondi%20bldg.png?VersionId=aQMby6eh5kCepC_rlXkobUpV0M6IsYns" />

Located near the intersection of Bondi Road, Oxford Street, and Old South Head Road, the site occupies a pivotal position at the entry to Bondi Junction from the east. The site is currently occupied by four detached two-storey dwellings.

Bondi Junction seldom sees new apartment development. Stargate is currently developing <a href="https://www.apartments.com.au/new-apartments/the-centennial-collection-east-sydney-2-nelson-street-bondi-junction-nsw-2022">The Centennial Collection</a>, on the edge of Woollahra and Centennial Park, and are soon to launch <a href="https://www.apartments.com.au/new-apartments/signature-by-stargate-362-384-oxford-street-bondi-junction-nsw-2022">Signature by Stargate</a>, just down Oxford Street.

Urban Editorial

First look: Eight-storey apartment block pitched for key Bondi Junction gateway site

Boutique developer SIERA has recently completed PIPIS, a rare, absolute beachfront address that embodies the best of the southern Gold Coast.

PIPIS was delivered in under three years, an achievement that reflects SIERA’s considered yet efficient approach. After securing the prime Golden Four Drive site in late 2022, the team refined the approved design and delivered a boutique collection of 19 residences, including two double-storey penthouses, homes that demonstrate how precision, craftsmanship and a disciplined approach to design can make the most of a rare beachfront location.

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With construction now complete and residents settled in, the final sub-penthouse offers a rare opportunity to join an address that captures the calm and quality of true beachfront living on the southern Gold Coast.

Beyond its location, PIPIS distinguishes itself through the depth of its amenity and the way those spaces are considered. Every element, from the magnesium lap pool and tropical landscaping to the dedicated dog wash and reformer Pilates equipment, has been planned with the residents’ day-to-day lives in mind. It’s not just what’s included, but how thoughtfully it’s executed.

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What truly sets PIPIS apart is the construction quality and craftsmanship, a hallmark of SIERA projects since its inception in 2014.

“Design and construction quality is the absolute first priority at SIERA,” says Managing Director Brent Thompson. “It’s the most important aspect of any project we do, before speed of delivery, before sales. If you can guarantee build quality, then the rest will fall into place.”

Thompson says the company’s reputation has been built on trust and lived experience rather than marketing promises. “What we want at SIERA is for future purchasers to speak to our past purchasers and ask them what it’s like living in a SIERA building. If we haven’t delivered on what we’ve promised previously, we won’t be successful in the future.”

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With a background in construction, Thompson’s hands-on approach is a key part of SIERA’s success. “If buyers are putting faith in the SIERA brand, it’s my responsibility that we deliver absolute quality and the highest level of service.”&nbsp;

But for Thompson and SIERA, liveability goes far beyond build quality. Every project begins with a clear understanding of who it’s being designed for. “Before we commit to buying a piece of land to develop, we consider who will reside there and what will matter to them,” Thompson says.

Every residence at PIPIS has been designed to open to the breeze, the natural light, and the sound of the ocean. Broad balconies extend living spaces outward, while the use of robust, tactile materials ensures each home feels grounded and easy to live in. It’s a design shaped by Queensland’s climate and a genuine understanding of how people want to live by the beach.

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Location was central to the vision for PIPIS. It was designed for people who know what makes the southern Gold Coast special, those who live here year-round and those who return whenever they can. “Our buyers all share the same mindset,” says Thompson. “They want to be close to Kirra, Palm Beach and Coolangatta, yet still have privacy and calm. They prefer smaller, well-crafted buildings to big towers, and they want to walk straight onto the beach. PIPIS was built around that sense of ease and familiarity.”’

With construction complete and residents now settled in, the final sub-penthouse offers a rare chance to join an address that defines absolute beachfront living on the southern Gold Coast, a building conceived with care, built with precision, and unlikely to be repeated anytime soon.

[smartcode_project_cta:default project_id=138311]

Joel Robinson

Quality assured: The sole focus driving SIERA’s Gold Coast apartment pipeline as PIPIS in Bilinga completes

When apartments are the minority in a suburb, their success often hinges on what’s available without needing a car.&nbsp;

Raya by <a href="https://www.urban.com.au/developers/core-developments">Core Developments</a> arrives at a time when apartment options in Gungahlin remain limited, and demand for well-located, walkable housing continues to grow.

Located on Ernest Cavanagh Street, <a href="https://www.urban.com.au/new-apartments/raya-gungahlin-ernest-cavanagh-street-gungahlin-act-2912">Raya</a> places residents within the most active part of Gungahlin.&nbsp;

Retail, dining, education and transport are all within close walking distance, with many of the suburb’s primary amenities located within a 150 to 300 metre radius.

“Raya has got the best to both worlds. A great looking building, that will be built impeccably. It will stand the test of time, and add enduring value for any buyer. And, this is quite simply the best residential location in <a href="https://www.urban.com.au/developments/gungahlin-act-2912">Gungahlin</a> with immediate access to every amenity Gungahlin has on offer. You could quite easily sell your car if you move here,” James Herbert of <a href="https://www.urban.com.au/project-marketer/lj-hooker-project-marketing-act-0">LJ Hooker projects</a> said.

<img alt="Raya, Gungahlin" data-entity-type="file" data-entity-uuid="266b0b21-f56b-4d93-9039-e9e17a2c4b71" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/e450173a099aaad8055757c92e45efb1-1600x0-c-default.png?VersionId=4X06Ja6e9pQTjOo4QKBEfKiRP1T7hR68" />

Marketplace Gungahlin - the suburb’s main shopping precinct - is less than a two-minute walk from the site. It offers access to major retailers including Woolworths, Aldi, BIG W and Kmart, along with a variety of services, medical centres, and fitness providers.

Dining options in the surrounding blocks are diverse and expanding. Longstanding local favourites like Le Bon Mélange and EQ Café are now joined by new arrivals such as Ikigai Ramen, The Usual and Sunday Canberra, reflecting Gungahlin’s emerging reputation as one of Canberra’s up-and-coming café and dining destinations.

While apartment living often calls for easy access to open space, Raya benefits from its proximity to several parks and recreational facilities. Yerrabi Pond District Park is just minutes away and offers walking trails, playgrounds, and picnic spots, as well as outdoor fitness equipment and a skate park.&nbsp;

Gungahlin Enclosed Oval and the Gungahlin Leisure Centre are also nearby, supporting a range of community and sports activities.

<img alt="Raya, Gungahlin" data-entity-type="file" data-entity-uuid="6b2ebc21-8257-4144-ad11-3970a73d5125" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/RAYA_2Bed-Living_nochair_3000-2000x0-c-default_0.png?VersionId=BJUJN_k6tZL9p9Lzq13m9OzyyKPstKQY" />

Public transport is a core strength of the location. The Gungahlin Place Light Rail stop, one of the network’s terminal stations, is located less than 100 metres from the development, providing direct access to Canberra’s inner north and CBD. Several local bus routes also operate from the same area, making car-free commuting a realistic option.

The immediate area also includes a number of schools catering to all levels, from early years through to college. Franklin School is within walking distance, while Gungahlin College and Burgmann Anglican School are both around two kilometres away. Childcare centres, health services and veterinary clinics are all established in the precinct.

Medical clinics, pharmacies, allied health services and a public walk-in centre are all available within the town centre footprint.

<img alt="Raya, Gungahlin" data-entity-type="file" data-entity-uuid="7b35a7c5-dbee-491a-8ec4-ee41c06505b5" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Raya_INT03_Rooftop_FP_3000-1600x0-c-default_0.png?VersionId=mTcDlZi3gAUq_spekHAWlWd5kvCbTiH3" />

Raya comprises 166 one, two and three-bedroom apartments, each with a private outdoor area. Balconies start at eight sqm, with some larger configurations offering upwards of 50 sqm of external space - a feature that aligns with the nearby parklands and active public spaces.

Buyers can secure an apartment now with a five per cent deposit, ahead of the project’s 2027 completion.

[smartcode_project_cta:default project_id=149952]

Raya: Rare apartment living in Gungahlin’s town centre

Leeka Group has gone down the path of bringing a heightened level of wellness to its recently unveiled Melbourne apartment development, Comme Prahran.

It isn't in the form of a suite of amenities, given the building is more boutique in nature with just 32 apartments, but with clever inclusions designed to uplift their residents lifestyle.

<a href="https://www.apartments.com.au/new-apartments/comme-prahran-182-194-commercial-road-prahran-vic-3181">Comme</a>, directly opposition the iconic Prahran Market on Commercial Road, has been designed by renowned architecture studio <a href="https://www.apartments.com.au/architects/cera-stribley-architects">Cera Stribley</a> and&nbsp;will introduce the first-of-its-kind multi-dimensional wellness offering, where physical, mental, social, environmental, and cultural well-being are embedded throughout.

“Prahran has long been a destination for culture, community and quality of life, and Comme builds on that in a deeply intentional way,” says Leeka Director, Chek Ming Cheng.&nbsp;

“This project introduces a new kind of urban sanctuary, one that adapts to individual definitions of wellness, whether that’s through nutrition, rest, movement, design or connection. Every space has been thoughtfully shaped to support the diverse rhythms of modern life."

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There will be a rooftop with a&nbsp;Zen garden designed by <a href="https://www.apartments.com.au/landscape-architect/plume-studio">Plume Landscape Architects</a>, offering&nbsp;a sensory experience that activates all five senses, an edible herb wall to taste, calming botanicals to smell, reflexology paths to feel, lush plantings to see and the gentle sounds of water and birdsong to hear.

Inside each residence, wellness is deeply personal, and Comme embraces this individuality with a suite of customisation options designed to enhance both health and lifestyle. Residents can tailor their homes with circadian lighting automation, supported by research linking it to improved well-being, better rest, and even longevity.&nbsp;

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Other add-ons residents can opt for include real-time air monitoring and purification systems, ensuring a cleaner, healthier environment, while blackout blinds help optimise sleep quality. Additionally, the option to include integrated smart home technologies and security measures with multiple controlled access points offers ease, convenience, and peace of mind, supporting day-to-day living and contributing to overall mental well-being.

Kitchens can be fitted with healthy cooking appliances such as steam ovens and taps for instant filtered, sparkling or hot water, while ensuites can be transformed into spa-style sanctuaries complete with steam showers, heated floors, rain heads, smart toilets, and sensor night lights to support restful sleep cycles. In the penthouse residence, further options include an outdoor spa for enhanced recovery and indulgence.

“Comme isn’t just about design, it’s about how space can support your day-to-day life," Chek added.

"Whether you like a steam shower, checking your indoor air quality, simply enjoying a quiet moment in the rooftop garden, or reflecting on the artworks in the building, wellness is part of your everyday routine, not an afterthought."

[smartcode_project:default project_id=108413 project_image_fid=353543]

The residences will feature open-plan layouts compliant with Better Apartment Design Standards (BADS), with floor-to-ceiling windows that maximise ventilation, natural light and thermal comfort. Finishes such as natural stones, timber flooring and low-VOC paints are complemented by facade design that filters dappled light and aids in thermal comfort.

Cera Stribley, Co-Founder, Domenic Cerantonio, said the first thing you notice is the light.

"Natural light floods the living spaces, casting a soft glow that instantly lifts your spirits. It's as if the outside world melts away, and you're cocooned in a peaceful oasis."

The gallery-style residential lobby will feature circadian-inspired lighting and artwork, while the ground-floor will offer retail and hospitality spaces.

The building’s mixed-use design fosters connection, with ground-floor retail and hospitality creating a vibrant, welcoming destination. These spaces are thoughtfully designed to enhance the precinct and bring it to life.

&nbsp;

[smartcode_project:default project_id=108413 project_image_fid=353545]

Sustainability and environmental responsibility are integral to Comme Prahran’s DNA. All homes are gas-free and designed to a 7-star energy average, with double glazing, WELS-rated plumbing, and EV charging capabilities available. A light-coloured exterior has been chosen to minimise heat absorption, supporting thermal efficiency and reducing reliance on artificial cooling.

Honouring the cultural richness of Prahran, the project reimagines an Edwardian-era landmark, integrating its historic character into a contemporary architectural form. Art experiences will activate the residential and retail lobbies, and a dedicated artwork on the external eastern facade will enrich the building’s street presence, embedding it into the creative fabric of the neighbourhood.

&nbsp;

[smartcode_project_cta:default project_id=108413]

Comme Prahran launches opposite Prahran Market

Apartment developer Third.i has seen "overwhelming interest" in its recently unveiled new harbourside apartment project, The Rushcutters.

<a href="https://www.apartments.com.au/new-apartments/the-rushcutters-51-57-bayswater-road-rushcutters-bay-nsw-2011">The Rushcutters</a>, which is being delivered in partnership with James Packer's NPACT, will comprise just 13 luxury two- and three-bedroom apartments.&nbsp;

Demand is predominantly coming from local downsizers.

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“We’ve been absolutely blown away by the level of interest in The Rushcutters,” said Luke Berry, Director and Co-founder Third.i Group.

“It’s clear that buyers are seeking more than just a place to live, they’re looking for a lifestyle upgrade. The ability to amalgamate apartments into expansive, whole-floor homes is a game-changer for downsizers who want space without the maintenance of a traditional house.”

The Rubinstein Group is marketing the project alongside Hume Residential and JLL.

“It’s no surprise that if you’re downsizing from a five-bedroom house in Bellevue Hill, for example, you want to maintain that sense of space and luxury when looking for your next home, "&nbsp;Gavin Rubinstein, Founder of The Rubinstein Group, said.

“The Rushcutters is a great fit. Amalgamating apartments to create a bespoke, whole-floor home is a natural progression for buyers who aren’t willing to compromise on size and/or quality.”

[smartcode_project:default project_id=144646 project_image_fid=351901]

Amalgamating apartments has become a common theme among high-end buyers across Third.i's portfolio including Muse in Potts Point, and Elevate Hume Place in Crows Nest, which set a Lower North Shore apartment record with the $15.1 million sale of an amalgamation of a penthouse and sub-penthouse.

“We’re witnessing a clear shift towards more amalgamations in a number of our projects across Sydney,” said Jason Fraser, Principal at Woods Bagot.

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“The ability to combine apartments is enabling buyers to create truly unique, house-sized residences with high-end finishes, and proximity to vibrant urban precincts. The desire to amalgamate apartments to bespoke, house-sized residences is becoming a defining feature of Sydney’s evolving luxury apartment market."

Due to the City of Sydney’s no net dwelling loss policy, Thirdi is only able to offer one level for amalgamation at The Rushcutters, combining two apartments into a single, expansive residence.

[smartcode_project_cta:default project_id=144646]

The Rushcutters a "great fit" for downsizers

Executor

<html><body>
GUEST OBSERVATION 
The recent case of Burgess v Burgess [2018] WASC 279 (‘Burgess’) continues a line of cases that consider the conflict that arises where a person acts as executor of a deceased estate while also receiving superannuation death benefits in their personal capacity.
Broadly, Burgess and the following cases revolve around the executor/administrator’s duty to collect assets of the deceased on behalf of an estate. As a fiduciary role, an executor/administrator must not, without proper authorisation, allow their personal interests to conflict with their obligations owed to the estate.
These cases are sure to have an increasing impact on death and succession planning in an SMSF context as around 70% of SMSFs are two-member funds and, in relation to couples, each spouse typically appoints their spouse as executor of their estate. Accordingly, many surviving spouses may thrust into a position of potential conflict in relation to their duties as an SMSF trustee\director and as an executor.
McIntosh v McIntosh – administrator was held to be conflicted
McIntosh v McIntosh [2014] QSC 99 (‘McIntosh’) involved a mother who was appointed as the administrator of her deceased son’s estate. While acting in that role, the mother also applied to three of her son’s industry/retail super funds to receive his death benefits in her personal capacity, which she received. If these death benefits had instead been paid to the estate they would have been distributed equally between her and her former husband (as the deceased parents) under the laws of intestacy in Queensland as their son died without a will. 
After some legal posturing between the mother’s and the father’s lawyers, the mother filed an application in the Queensland Supreme Court to determine the matter which found:
… there was a clear conflict of duty … contrary to her fiduciary duties as administrator. When the mother made application to each of the superannuation funds for the moneys to be paid to her personally rather than to the estate, she was preferring her own interests to her duty as legal personal representative to make an application for the funds to be paid to her as legal personal representative. She was in a situation of conflict which she resolved in favour of her own interests. As such she acted … in breach of her fiduciary duty as administrator of the estate …
Accordingly, the mother was required to account to the estate for the super benefits she had personally received. Also of note was in this case was the fact that the mother was a nominated beneficiary in respect of each of the super funds via non-binding nominations. Had binding death benefit nominations (‘BDBNs’) been in place, no conflict would have arisen. For further analysis of this case <a id="LPlnk850753" href="https://www.dbalawyers.com.au/smsf-strategy/mcintosh-v-mcintosh-2014-qsc-99-important-implications-smsf-succession-planning/" target="_blank" rel="noopener noreferrer" data-auth="NotApplicable">click here</a>.
Brine v Carter – executor was held not to be conflicted
Brine v Carter [2015] SASC 205 examined a potential conflict arising in the case of an executor which did not require the executor to account to the estate. Professor Brine had appointed his three children and Ms Carter, his de facto spouse, as the executors of his estate. Professor Brine had two super accounts/pensions in the same industry super fund. As one pension had no residual value and could only be paid to his surviving spouse, the dispute related to the remaining pension, which could be paid to a dependant or the legal personal representative (deceased estate). Professor Brine had completed a non-binding death benefit nomination in favour of his legal personal representative to receive this pension amount.
Ms Carter applied to the super fund trustee to receive the benefits in both accounts in her personal capacity.
Ms Carter had previously represented to the other three executors on multiple occasions that the estate was not an eligible beneficiary of the super benefits. However, after making their own enquiries, the deceased’s three children found out that they could claim the death benefit on behalf of the estate and proceeded with this claim.
The super fund trustee then exercised its discretion to pay both pension benefits to Ms Carter and the remaining executors formally disputed this decision. Due to her conflict, Ms Carter recused herself from any discussions or actions relating to the dispute notice issued to the fund trustee by the executors and did not object to it but remained an executor. Ms Carter in fact made further submissions to the trustee in her personal capacity claiming the benefits.
After the super fund trustee affirmed its decision and other dispute processes provided no further recourse, the remaining executors applied to the South Australian Supreme Court for an order that Ms Carter account to the estate for these benefits. The court found that:
<ul>
<li>Ms Carter was in a position of conflict regarding her duties as an executor.</li>
<li>Ms Carter’s appointment as an executor via the deceased’s will, while providing some acknowledgement by the deceased of a conflict, was not by itself sufficient to overcome her position of conflict. Rather, a specific conflict authorisation was required.</li>
<li>As the other executors claimed the super benefits on behalf of the estate and had full knowledge about their rights prior to the super fund trustee’s decision, they effectively consented to Ms Carter claiming the benefits in her personal capacity despite her conflict. From that point, Ms Carter did not act in breach of her duty as an executor as there was no connection between her breach and the benefit she received.</li>
<li>Ms Carter was not required to account to the estate.</li>
</ul>
Brine v Carter provides a particular set of facts that resulted in a somewhat incongruous outcome that allowed an executor to apply for and receive death benefits in her personal capacity despite a potential conflict arising. The court noted that had the other executors not been aware of Ms Carter’s application, and had they also not made an application on behalf of the estate, Ms Carter would have been liable to account to the estate. This outcome was therefore due to the particular facts in this case. In many other factual scenarios, the conflict could easily have resulted in the spouse having to account to the estate.
Burgess v Burgess – sacred trustee obligations
In Burgess v Burgess [2018] WASC 279 Mr Burgess died without leaving a will in May 2015 and was survived by his wife and two minor children. A year after his death, Mrs Burgess applied to become administrator of his estate and was appointed on 27 June 2016.
Mr Burgess had super benefits in four large public offer funds and Mrs Burgess made a claim to two of those funds to be paid her deceased husband’s death benefits. She applied for and received benefits from one fund prior to her appointment as administrator and applied for and received benefits from another fund after her appointment.
Mr Burgess’ estate (including any super paid to the estate) would be split among Mrs Burgess and their two young children. By the time of hearing, one super fund had paid benefits to the estate. The fourth fund had not yet made any payment and Mrs Burgess had not made any application to it. Further, there were no BDBNs in place in relation to any of the funds.
Due to the uncertainties, Mrs Burgess herself made an application to the Western Australian Supreme Court. Ultimately, the court followed the principles in McIntosh and found that:
<ul>
<li>Mrs Burgess would retain the benefits from the first super fund, as she was not an administrator at the time of application and thus no conflict had arisen in relation to the first fund.</li>
<li>Mrs Burgess was required to account to the estate for the benefits applied for and received after she was appointed. There was a conflict of interest and as administrator she was bound to claim the benefits on behalf of the estate after she was appointed administrator.</li>
<li>Mrs Burgess was bound to claim the remaining super benefits on behalf of the estate.</li>
</ul>
The court’s comments in Burgess demonstrate the strict fiduciary obligations placed on an executor or administrator. Martin J explained Mrs Burgess’ obligations at para [84] as follows:
In an age of increasing moral ambivalence in western society the rigour of a court of equity must endure. It will not be shaken as regards what is a sacred obligation of total and uncompromised fidelity required of a trustee. Here, that required the administrator not just to disclose the existence of the (rival) estate interest when claiming the superannuation moneys in her own right from the fund trustee. It required more. It required her to apply as administrator of the estate for it to receive the funds in any exercise of the fund trustee's discretion.
Martin J gave the following comments at para [85] regarding the fiduciary duties of an executor:
The interests of a deceased estate require a 'champion' who cannot be seen (even if they are not) to be acting half-heartedly, or with an eye to achieving outcomes other than an outcome that thoroughly advances the interests of the estate - to the exclusion of other claimants.
Martin J made the point that the undesirable outcome in this case might have been avoided had Mr Burgess made a will that explicitly contained a conflict authorisation or if he had signed BDBNs in relation to his super benefits. In lamenting the outcome Martin J at para [91] stated:
The result is, of course, messy for the family and less clear cut than might otherwise have been desired. However, that is a result of wider trustee integrity policy principles of the law which take effect and prevail. They are of vital importance and are applicable to universal circumstances extending well beyond the present rather regrettable factual situation. The present is a situation, I reiterate, that might have been avoided by the two measures I earlier mentioned.
Other important cases
In the case of Re Narumon [2018] QSC 185 the court considered whether attorneys under an enduring power of attorney (‘EPoA’) could validly execute both a BDBN confirmation/extension as well as a new BDBN on behalf of a member. Whether an attorney will have such power will depend on the SMSF governing rules, the EPoA document, the relevant powers of attorney legislation in the applicable state/territory and the federal superannuation legislation.
In Re Narumon the member (Mr Giles) became incapacitated and his attorneys under an EPoA, his wife (Mrs Giles) and his sister (Mrs Keenan), purported to both extend a prior lapsed BDBN and to execute a new BDBN, both of which provided for death benefits to be paid to them. The EPoA document did not expressly authorise the attorneys to enter into a conflict transaction. The Court found that the extension of the prior BDBN was valid since:
<ul>
<li>the fund’s governing rules allowed the prior BDBN to be confirmed and provided that any power or right of a member could be exercised by an attorney;</li>
<li>while the EPoA document did not expressly deal with superannuation matters, the meaning of ‘financial matters’ in the relevant (Queensland) legislation was wide enough to cover superannuation; and</li>
<li>while a ‘conflict transaction’ entered into by an attorney can invalidate a transaction, the confirmation of the prior BDBN was not a conflict transaction. While the BDBN benefited the attorneys it was found not to amount to a conflict as it simply ensured the continuity of Mr Giles’ prior wishes.</li>
</ul>
However, the new BDBN executed by Mrs Giles and Mrs Keenan was found to be a conflict transaction as it provided for a different payment of death benefits which slightly benefited Mrs Giles more than the extended BDBN. Thus, the new BDBN was invalid. For a detailed analysis of this case and its lessons <a id="LPlnk492694" href="https://www.dbalawyers.com.au/announcements/important-supreme-court-decision-provides-further-guidance-on-binding-death-benefit-nominations/" target="_blank" rel="noopener noreferrer" data-auth="NotApplicable">click here</a>.
In the case of Re Marsella; Marsella v Wareham (No 2) [2019] VSC 65 the deceased’s daughter, who was also a co-trustee, was ordered to repay death benefits back to the fund and was removed as a trustee along with her co-trustee husband for acting ‘grotesquely unreasonable’ in conflict of her trustee duties and in bad faith. This case explores the high legal standards placed on SMSF trustees and highlights the need for careful attention to SMSF succession planning. For a detailed analysis of this case and its lessons <a id="LPlnk205523" href="https://www.dbalawyers.com.au/announcements/grotesquely-unreasonable-and-smsf-trustees-paying-death-benefits-re-marsella/" target="_blank" rel="noopener noreferrer" data-auth="NotApplicable">click here</a>.
SMSFs
It is important to consider the impact of these cases from an SMSF perspective as it is typical for the spouse of a deceased SMSF member to also be an executor or administrator of that member’s estate. In such a situation, a potential and real conflict may arise between the executor/administrator’s obligations as trustee of the estate and their desire to receive superannuation death benefits in their personal capacity. 
These cases reiterate the importance of planning for death and SMSF succession. In all cases, the conflict difficulties would likely have been avoided had the deceased had a will with appropriate conflict authorisations and/or BDBNs were in place to remove the trustee’s discretion as to whom death benefits could be paid.
In any super death benefits matter, advisers and trustees should ensure that applications to receive benefits are not made without first considering, among other things, the possible conflict implications. Moreover, advisers should recommend that their clients proactively implement SMSF succession and death benefit strategies that ensures the surviving spouse is not placed in a position of conflict that could undermine their ability to receive their spouse’s death benefits. This might involve special provisions in wills, EPoAs, BDBNs, death benefit deeds and other legal documents.
Conclusion
This line of cases illustrates that the courts treat the fiduciary duties of an executor/administrator in a strict and ‘sacred’ manner. Further, the courts will uphold these obligations despite what might be seen as a strict and inflexible approach resulting in an ‘unfair’ outcome.
DBA Lawyers is well placed to advise and document succession strategies to overcome these risks. We offer, among other services:
<ul>
<li>Succession planning advice</li>
<li>BDBNs</li>
<li>Death benefit deeds</li>
<li>Constitutions with successor directors</li>
<li>SMSF deeds with numerous succession strategies</li>
</ul>
For an article on succession planning strategies <a id="LPlnk80306" href="https://www.dbalawyers.com.au/smsf-deeds/smsf-succession-strategies-2/" target="_blank" rel="noopener noreferrer" data-auth="NotApplicable">click here</a>.
Without proper prior planning, SMSF members could be left with conflicts, resulting in substantial time and cost hurdles in the event there is any dispute.
Shaun Backhaus is a Lawyer at DBA Lawyers  and can be contacted <a id="LPlnk319001" href="mailto:sbackhaus@dbalawyers.com.au" target="_blank" rel="noopener noreferrer" data-auth="NotApplicable">here</a>.
Daniel Butler is a Director at DBA Lawyers and can be contacted <a id="LPlnk625190" href="mailto:dbutler@dbalawyers.com.au" target="_blank" rel="noopener noreferrer" data-auth="NotApplicable">here</a>.
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j.ballantyne1990-6AQqhLzZaK

Can a spouse claim their deceased partner's super if they are also the estate executor?

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GUEST OBSERVER
Generally, where an executor of a deceased’s estate is a spouse, family member or friend, for example, they are not entitled to remuneration, particularly if they already receive a benefit under the deceased’s will. 
If an executor is not remunerated under the Will they can make an application to the court, which has the discretion to allow an executor remuneration for their services where it is just and reasonable (see section 98 Trustees Act 1962 (WA); other states including NSW have an equivalent provision). 
In Atkins v Godfrey [2006] WASC 83 the court stated that it was just and reasonable for the executor (who was a friend of the deceased) to receive remuneration, as there was evidence to show that during a five-year period the executor had spent over 380 hours on the administration of the estate and that the executor had rendered substantial services over that time.
However, the court has the power to refuse an executor’s remuneration on a number of grounds, including positive fraud and dishonesty or if there has been misconduct in the execution of the executor’s duties.
Whilst in the above case there were no acts of fraud or dishonesty, there were two factors which reduced the amount of remuneration the court awarded the executor: 
One - Failure to pursue the administration of the estate with due expedition
Once the assets of the estate were distributed, a dispute arose relating to legal fees paid to the solicitors involved assisting with the administration of the estate, and who represented the executor in relation to a claim against the estate from the deceased's family member.
This conflict caused a delay in relation to finalising the accounts of the estate and the court found that the evidence showed the executor did not take steps to ensure the conflict was resolved expediently.  As a result there was unnecessary delay which reduced the amount the court awarded the executor to reflect that the administration of the estate should have been finalised earlier. 
Two - Failure to scrutinise legal fees
The executor overpaid the solicitors involved in the administration of the estate due to a failure of the executor to scrutinise the invoices to ensure the amounts charged were proportionate to the work undertaken.  This meant the solicitors had to refund to the estate approximately $19,000.  The court decided that as a result of this a modest reduction to the remuneration of the executor would be appropriate.
Other factors relevant to the amount of remuneration awarded in this case included. 
- the estate was not complex for the executor (i.e. the Will was not difficult to interpret, most assets were distributed straight to the beneficiaries and did not need to be sold);
- the amount of time the executor spent on the estate (over 380 hours);
- the responsibility the executor assumed in relation to the court action against the estate; and
- the involvement of professional solicitors and accountants in relation to the estate.
Independent executors can be paid by the estate but it is wise to say so in the Will.  The amount they can receive is clearly dependent on the particular estate but also on the level of efficiency they exhibit in carrying out their role. 
 Peter Townsend is principal, Townsends Business &amp; Corporate Lawyers and can be contacted <a href="https://www.townsendslaw.com.au" target="_blank">here</a>.
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