Australian Securities and Investments Commission v Tasman Investment Management Ltd

The case between the Australian Securities and Investments Commission (ASIC) and Tasman Investment Management Ltd (Tasman) was heard by the Federal Court of Australia. The dispute centred on the distribution of surplus assets in the winding up of Tasman, an unregistered managed investment scheme. The key issues before the court were whether the distribution of these assets could depart from the investors' proprietary rights and the appropriate form of directions to the receiver. Additionally, the court had to determine if it should make findings of fact in the case.

The legal issues involved interpreting the Corporations Act 2001 (Cth) concerning the treatment of surplus assets in the winding up of an unregistered managed investment scheme. The primary focus was on whether the court had the discretion to make a distribution that deviated from the investors' proprietary rights, as well as the extent of the court's authority in directing the receiver. The court also considered the procedural fairness and the necessity for findings of fact before making any substantive orders.

The court held that the distribution of surplus assets must adhere to the investors' proprietary rights, meaning that any distribution could not depart from these rights. The court emphasised that it did not have the discretion to make a distribution that would contravene the proprietary interests of the investors. Regarding the form of directions to the receiver, the court concluded that it should not make findings of fact unless necessary to provide clarity on the legal issues. The court issued directions to the receiver to ensure the proper distribution of the surplus assets in accordance with the investors' proprietary rights. The court also clarified that it would not make findings of fact unless it was essential to resolve the legal questions at hand.

The final orders of the court included directions to the receiver to distribute the surplus assets in compliance with the investors' proprietary rights. The court refrained from making findings of fact unless necessary for the resolution of the legal issues presented in the case. The decision underscored the importance of adhering to investors' proprietary rights in the winding up of an unregistered managed investment scheme and the limited role of the court in making factual findings in such proceedings.