Legal Research
Cases
High Court Bulletin

High Court Bulletin

Link copied

Case Copied 18 December 2018 33 min read

Contents

On this page

High Court Bulletin

Produced by the Legal Research Officer,
High Court of Australia Library

[2018] HCAB 10 (18 December 2018)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated

1: Summary of New Entries
2: Cases Handed Down
3: Cases Reserved
4: Original Jurisdiction
5: Section 40 Removal
6: Special Leave Granted
7: Cases Not Proceeding or Vacated
8: Special Leave Refused

1: Summary of New Entries

2: Cases Handed Down

Case	Title
Australian Securities & Investments Commission v Lewski & Anor; Australian Securities & Investments Commission v Wooldridge & Anor; Australian Securities & Investments Commission v Butler & Anor; Australian Securities & Investments Commission v Jaques & Anor; Australian Securities & Investments Commission v Clarke & Anor	Corporations Law
Commissioner of Taxation for the Commonwealth of Australia v Tomaras & Ors	Family Law
The Republic of Nauru v WET040 [No 2]	Migration
TTY167 v Republic of Nauru	Migration
Commissioner of State Revenue v Placer Dome Inc	Stamp Duty

3: Cases Reserved

Case	Title
Unions NSW & Ors v State of New South Wales	Constitutional Law
Australian Securities and Investments Commission v Kobelt	Consumer Law
McKell v The Queen	Criminal Law

4: Original Jurisdiction

Case	Title
Plaintiff M47/2018 v Minister for Home Affairs & Anor	Constitutional Law

5: Section 40 Removal

6: Special Leave Granted

Case	Title
Mann & Anor v Paterson Constructions Pty Ltd	Contracts
Connective Services Pty Ltd & Anor v Slea Pty Ltd & Ors	Corporations
Bell Lawyers Pty Ltd v Pentelow & Anor	Costs
The Northern Territory of Australia v Sangare	Costs
Masson v Parsons & Ors	Family Law

7: Cases Not Proceeding or Vacated

Case	Title
AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym)	Criminal Law

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the December 2018 sittings.

Corporations Law

Australian Securities & Investments Commission v Lewski & Anor; Australian Securities & Investments Commission v Wooldridge & Anor; Australian Securities & Investments Commission v Butler & Anor; Australian Securities & Investments Commission v Jaques & Anor; Australian Securities & Investments Commission v Clarke & Anor

M79/2018; M80/2018; M81/2018; M82/2018; M83/2018: [2018] HCA 63

Judgment delivered: 13 December 2018

Coram: Kiefel CJ, Bell, Gageler, Keane and Edelman JJ

Catchwords:

Companies – Managed investment schemes – Officers – Duties – Where each first respondent director of second respondent responsible entity of managed investment scheme – Where four directors resolved to amend scheme's constitution to introduce new fees payable to responsible entity out of scheme's assets – Where all five directors resolved to lodge and lodged amended constitution with Australian Securities & Investments Commission ("ASIC") – Where all five directors resolved to pay fees and caused payments to be made – Where ASIC alleged contraventions of Corporations Act 2001 (Cth) by responsible entity and directors – Where…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read High Court Bulletin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] HCAB 10
Decision Date

CaseChat Overview and Summary

The parties in this case were the Australian Securities and Investments Commission (ASIC) and various respondents, including Lewski, Wooldridge, Butler, Jaques, and Clarke. The dispute was centered around allegations of contraventions of the Corporations Act 2001 (Cth) by the respondents, who were directors of managed investment schemes. ASIC claimed that the respondents had breached their duties by introducing new fees payable to the responsible entity of the managed investment schemes without proper member approval. The case was heard by the High Court of Australia.

The legal issues that the court had to decide included whether the amendments to the constitution of the managed investment schemes adversely affected the members' rights, whether the Full Court was correct in holding that the amendments were valid from the time they were lodged until set aside, whether the Full Court was correct in holding that there were no breaches of duty due to the honest belief that the constitution was validly amended, and whether the Full Court was correct in holding that the directors were not involved in the contravention of section 208 of the Corporations Act by the responsible entity.

The court found that the appeals were allowed in part. The court held that the amendments to the constitution of the managed investment schemes did adversely affect the members' rights. The court also held that the Full Court was incorrect in holding that the amendments were valid from the time they were lodged until set aside. The court further held that the Full Court was incorrect in concluding that there were no breaches of duty due to the honest belief that the constitution was validly amended. However, the court found that the Full Court was correct in holding that the directors were not involved in the contravention of section 208 of the Corporations Act by the responsible entity.

The final orders of the court were to allow the appeals in part, setting aside the decisions of the Full Court and returning the matter to the Federal Court of Australia for further consideration in light of the findings of the High Court.

Orders