ING Funds Management Ltd v ANZ Nominees Ltd

The matter before the court involved a dispute between ING Funds Management Ltd and ANZ Nominees Ltd regarding the constitution of a managed investment scheme. The primary issue was whether a responsible entity of a registered scheme, in this case, ING Funds Management Ltd, could unilaterally modify the scheme's constitution when the constitution was in the form of a deed poll. The court had to determine if the entity's power of modification, as outlined in section 601GC(1)(b), allowed for the use of an instrument other than a deed to modify the constitution. The court also needed to ascertain the corporation's state of mind in relation to the modification, the meaning of "member's rights," and the distinction between rights and interests.

The court examined the scope of the responsible entity's power of modification under the relevant statute. It considered the implications of the term "reasonably considers" and the need for evidence showing the grounds for the decision and the rationale for the conclusion. The court also explored the meaning of "member's rights" and whether the modification adversely affected those rights. The court held that the responsible entity's power of modification was limited and did not allow for the use of an instrument other than a deed to modify the constitution. The court found that the modification in question adversely affected the members' rights and that the responsible entity had not provided sufficient evidence to demonstrate that the modification was reasonably considered and in the best interests of the members.

The court's reasoning led to the conclusion that the modification was invalid. Consequently, the court ruled in favour of ANZ Nominees Ltd, determining that the modification of the constitution was not permissible under the relevant statute. The final orders of the court reflected this decision, with the court setting aside the modification and affirming the original constitution of the managed investment scheme.