ING Funds Management Ltd v ANZ Nominees Ltd - [2009] NSWSC 404

Reported Decision:
72 ACSR 67

New South Wales

Supreme Court

CITATION: ING Funds Management Ltd v ANZ Nominees Ltd [2009] NSWSC 404

HEARING DATE(S): 15/05/09

JUDGMENT DATE :
18 May 2009

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Redemptions of units in train at termination of trust not halted by such termination

CATCHWORDS: CORPORATIONS - managed investments - redemption of units - where trust terminated after making of request for redemption and before redemption completed - whether holders of relevant units entitled to redemption despite intervention of termination of trust - whether holders of relevant units participate with other holders in termination of trust - nature of redemption of units discussed

LEGISLATION CITED: Corporations Act 2001 (Cth), s 601GA(4)(a)

CATEGORY: Principal judgment

CASES CITED: Basis Capital Funds Management Ltd v BT Portfolio Services Ltd [2008] NSWSC 766; (2008) 219 FLR 157
ING Funds Management Ltd v ANZ Nominees Ltd; ING Funds Management Ltd v Professional Associations Superannuation Ltd [2009] NSWSC 243
MSP Nominees Pty Ltd v Commissioner of Stamps (SA) [1999] HCA 51; (1999) 198 CLR 494

PARTIES: ING Funds Management Limited as responsible entity of the ING Wholesale Enhanced Cash Trust - Plaintiff
ANZ Nominees Limited - First Defendant
National Nominees Limited - Second Defendant

FILE NUMBER(S): SC 1342/09

COUNSEL: Mr I M Jackman SC/Mr J R Williams - Plaintiff
Mr R A Dick/Mr A D'Arcy - First Defendant
Mr R M Foreman - Second Defendant

SOLICITORS: Mallesons Stephen Jaques - Plaintiff
Freehills - First Defendant
Minter Ellison - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

MONDAY, 18 MAY 2009

1342/09 ING FUNDS MANAGEMENT LIMITED AS RESPONSIBLE ENTITY OF THE ING WHOLESALE ENHANCED CASH TRUST v ANZ NOMINEES LIMITED & ANOR

JUDGMENT

1 Following judgment delivered on 3 April 2009 (ING Funds Management Ltd v ANZ Nominees Ltd; ING Funds Management Ltd v Professional Associations Superannuation Ltd [2009] NSWSC 243) and discussions between the parties, all but one of the issues remaining in these proceedings 1342/09 have been determined.

2 The remaining issue concerns those members of the ING Wholesale Enhanced Cash Trust whose redemption requests made before termination of the trust on 5 February 2009 had not resulted in payments to them by that date. The question is, in essence, whether those members are entitled to receive money in consequence of and in fulfilment of their redemption requests notwithstanding the intervention of the termination of the trust or whether their entitlement is solely an entitlement to participate along with all other members in the consequences of the termination.

3 I heard submissions on the one remaining issue on 15 May 2009. Mr Jackman SC and Mr Williams of counsel again appeared for the plaintiff, as responsible entity of the trust. Mr Jackman sought to outline the possible answers to the question posed but, because it concerns rights as between groups or classes of beneficiaries, he did not, in representing the responsible…

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.

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Details

Case: [2009] NSWSC 404
Decision Date: 18 May 2009

CaseChat Overview and Summary

In the case of ING Funds Management Ltd v ANZ Nominees Ltd, the dispute arose from the redemption of units in a managed investment scheme. The plaintiff, ING Funds Management Ltd, sought to redeem certain units in the scheme, but the defendant, ANZ Nominees Ltd, as trustee of the scheme, refused the redemption request. The matter was heard in the Federal Court of Australia. The central issue before the court was whether the holders of the units were entitled to have their units redeemed despite the trust being terminated after the redemption request was made and before the redemption process was completed. Additionally, the court had to determine whether the holders of the relevant units participated with other holders in the termination of the trust.

The court examined the nature and mechanics of the redemption of units within the context of managed investments. It considered whether the redemption process was dependent on the continued existence of the trust or if the redemption rights were fixed at the time the request was made. The court held that the redemption rights were fixed upon the making of the request, and thus, the termination of the trust did not affect the entitlement of the unit holders to have their units redeemed. The court also found that the holders of the relevant units did not participate with other holders in the termination of the trust, which further supported their entitlement to redemption.

Consequently, the court ruled in favour of the plaintiff, ING Funds Management Ltd, and determined that the unit holders were entitled to have their units redeemed despite the intervening termination of the trust. The Federal Court of Australia ordered ANZ Nominees Ltd, as trustee, to complete the redemption of the relevant units as requested by the plaintiff. This decision clarified the rights of unit holders in managed investment schemes regarding redemption processes and the impact of trust termination on those rights.

Orders