Loughran v Perpetual Trustees WA Ltd
[2007] VSC 50
•5 March 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 8236 of 2005
| REGINALD LOUGHRAN AND OTHERS | Plaintiffs |
| v | |
| PERPETUAL TRUSTEES W.A. LIMITED (ACN 008 666 886) (TRUSTEE OF THE SECOND MULTIPLE PROSPECTUS DEED TRUST) | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 JANUARY 2007 | |
DATE OF JUDGMENT: | 5 MARCH 2007 | |
CASE MAY BE CITED AS: | LOUGHRAN & ORS v PERPETUAL TRUSTEES WA LTD | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 50 | |
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PRACTICE AND PROCEDURE – Preliminary question – Film investment scheme – Application by plaintiffs for inspection of documents held by the defendant – Whether defendant acting as trustee or agent – Whether any equitable basis for access to documents - General Rules of Procedure in Civil Proceedings 1996, r.54.02
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J. Twigg with Mr D. McWilliams | Kelly & Chapman |
| For the Defendant | Mr M. Harvey | Maddocks as agents for Henry Davis York |
HIS HONOUR:
This proceeding commenced with the issue of an originating motion on 16 September 2005. The plaintiffs allege that the defendant (Perpetual Trustees W.A. Ltd) was, under a Deed of Trust dated 9 May 1988, appointed trustee of a trust called the Second Multiple Prospectus Trust. It is sued in that capacity. The plaintiffs contend that the defendant has in its possession documents which the plaintiffs, as beneficiaries under the trust, are entitled to inspect. This entitlement having been denied by the defendant, the plaintiffs now seek orders directing production to them of the documents in question. They invoke the Court’s equitable jurisdiction as well as, or in the alternative to, that provided by r.54.02 of the General Rules of Procedure in Civil Proceedings 1996. The rule provides that a proceeding may be brought for any relief which could be granted in an administration proceeding, including the determination of any question that could be determined in such a proceeding.
On 16 December 2005, the first plaintiff (Mr Reginald Loughran) swore an affidavit in support of the originating motion. He there deposed to the plaintiffs' involvement in the production of a film originally called "Night of the Leopard", but released under the name "Double Impact".[1]
[1] Affidavit of Reginald Loughran sworn 16 December 2005, para. 3.
According to the account given in the affidavit, the plaintiffs were subscribers to a prospectus dated 11 June 1990. This was issued pursuant to the deed of 9 May 1988, and was designed to attract investors who wished to acquire an individual interest in a fund to be created “for the purpose of regulating investment in the production of a particular film”. By it, interested investors were offered “[u]p to 4,812 units of A$100 each in a trust fund” and (upon applying for a unit or units in the trust fund) up to the same number of “parcels of production contribution moneys of A$5,000 each”.[2] Upon subscribing the requisite $5,100 (and subject to the requirements of the scheme) each applicant became a "production contractor" and at the same time a party to a number of contracts: (a) a production services agreement by which the production contractors, using the defendant as their agent, agreed to make the film for its owner - a company called Balmedie Pty Ltd; (b) a supervision agreement, another party to which was a company called Kamisha Corporation Ltd; and (c) the Second Multiple Prospectus Deed. This is the “Deed of Trust” to which the originating motion refers. The parties to it were Kamisha, the defendant and each production contractor. By the supervision agreement, Kamisha was appointed production manager of the film and, as such, the agent of each production contractor for the purposes of that production.
[2] Prospectus, 11 June 1990, p.2. See also Mr Loughran’s affidavit, at para.7.
In his affidavit, Mr Loughran also swore that the production services agreement required Balmedie as the owner of the film to pay certain fees to the production contractors.[3] First, there was the “Base Production Services Fee”, which (as I understand it) was payable - regardless of the profitability of the venture - on three occasions at yearly intervals commencing in 1994.[4] Because its payment could not come out of the revenue of a film still under production, security for its payment was doubtless important. Accordingly, Balmedie was to provide an “irrevocable letter of credit, or bank guarantee of correspondent [sic] security standing”.[5] In either case, the security was to “be drawn on an Australian bank of the stature of the Westpac Banking Corporation (including a State Bank) or a subsidiary of an Australian bank of the stature of the Westpac Banking Corporation or other company acceptable to the defendant in favour of the defendant on behalf of the plaintiffs.”[6]
[3] Affidavit of Reginald Loughran sworn 16 December 2005, para.9.
[4] Defendant’s written submissions, 3 October 2006, para. 13.4.1.
[5] Affidavit of Reginald Loughran, para. 10
[6] Ibid.
The second category of fees was payable out of any profits which the film might generate. They are referred to in the Loughran affidavit as “Further Production Services Fees”; and, the affidavit continues, the film’s distributor, Epic Productions Inc. “had agreed to meet directly the obligations of Balmedie to the plaintiffs and other production contractors for [their] payment”. [7]
[7] Ibid, para. 9.
The plaintiffs complain that the base production services fee was not properly secured. Although it seems that the appointment of the National Mutual Royal Bank Ltd as one of two security providers was unexceptionable, the appointment of the other is now under attack. Balmedie put forward, and the defendant accepted, Equuscorp Pty Ltd. But it was not a bank at all, let alone a bank of the requisite stature. The defendant nevertheless accepted it as the provider of security in the sum of $10,468,750. This (so the plaintiffs contend) was a breach by the defendant of its duty to them.
To this the plaintiffs add a second complaint. When Equus failed to make a payment which, according to the plaintiffs, the security provider was bound to make, the plaintiffs were immediately exposed. And the impact of that exposure assumed particular significance when, years later, Equus and the defendant entered into negotiations about the amount for which Equus was then liable. On 14 May 1999, the security provider offered to pay $750,000. That was, according to the plaintiffs, $3,315,085 short of the amount due. The offer was not accepted. Yet on 10 September 1999, or thereabouts, “the defendant and Equus entered a deed of settlement pursuant to which Equus paid the defendant $500,000 in full and final settlement of Equus’ obligations under the Equus security.”[8] This was not only $250,000 less than that offered by Equus in May, but was (so the affidavit contends) $3,565,085 short of the amount due.[9]
[8] Affidavit of Reginald Loughran sworn 16 December 2005, para. 15.
[9] Ibid, para. 16.
Nor do the plaintiffs’ grievances end there. According to them, the defendant claimed a right to be indemnified from the trust fund against the legal expenses incurred by it “in seeking to enforce the Equus security and pursuing or defending [other] proceedings”.[10] Under cover of its claim, the defendant paid itself the sum of $936,834.04 - which it withdrew “from the trust fund” for that purpose.[11]
[10] Ibid, para. 19.
[11] Ibid, paras. 19 and 20.
To these three grievances the plaintiffs add a further two. First, they contend that they have not received any further production services fees; and this is so despite the fact that in September 1995 Epic offered $300,000 in return for “a complete release of all obligations which Epic … may have to the defendant as agent for the plaintiffs”.[12] Indeed, Kamisha recommended that the defendant accept this offer. Yet this advice was not taken; “and to date no sum has been received from Epic in respect of the Further Production Services Fees.”[13]
[12] Ibid, para. 22.
[13] Affidavit of Reginald Loughran sworn 16 December 2005, para. 24.
The plaintiffs’ final complaint is that the defendant has failed to “pursue actions against either Kamisha or Balmedie or both.”[14]
[14] Ibid, para. 26(d).
The plaintiffs now wish to inspect the documents the subject of the originating motion. Such inspection, they contend, will enable them to ascertain whether, and if so to what extent, the defendant breached duties owing to the plaintiffs: (a) in approving and accepting the security offered by Equus; (b) in improperly indemnifying itself for its legal costs; (c) in failing to accept (i) the original offer from Equus, it being in a sum $250,000 more than the amount later accepted, and (ii) the offer from Epic; and (d) in failing to pursue its legal remedies against either Kamisha or Balmedie or both.
The plaintiffs contend that they have a right to inspect. It is, they submit, grounded in the principles of equity. And it is to equity that they look for relief. The originating motion of 16 September 2006 states that:
“The plaintiffs sue the defendant as trustee under a deed of trust dated 9 May 1998 made between Kamisha … and [the defendant] as trustee of the Second Multiple Prospectus Trust (“the Trust”) and claim [that] … [t]he defendant … produce to the plaintiffs … :
(a)all books, accounts, and vouchers of the trustee of the Trust and securities and documents held by the defendant or on the defendant's behalf on account of the Trust;
(b)all minutes, notes, memoranda, correspondence or other documents relating to the defendant's approval on or about 29 June 1990 of a security provided by … Equus …;
(c)all minutes, notes, memoranda, correspondence or other documents relating to the defendant's decision to commence litigation against Equus;
(d)all invoices, fee slips and the like issued to the defendant for the purpose of its litigation against Equus which may support any debit or credit to the trust fund;
(e)all invoices and retainers evidencing the relationship between the defendant and its legal advisors together with any legal advice provided to the defendant in its capacity as trustee of the Trust where such advice has either been paid for by the trust fund or obtained in the interest of the beneficiaries of the Trust;
(f)all minutes, notes, memoranda, correspondence or other documents relating to the defendant's decision to not accept offers of settlement made by Epic … to the defendant in or about October 1996 and October 1997;
(g)all minutes, notes, memoranda, correspondence or other documents relating to the defendant's decision not to issue proceedings against either Kamisha … or Balmedie … concerning the Equus security;
(h)all minutes, notes, memoranda, correspondence or other documents relating to the defendant's decision not to retire as trustee of the Trust; and
(i)all such information and explanation of any of the above documents as the plaintiff may reasonably require.”
On 30 May 206, the Court ordered by consent that there be a separate trial of two questions. That trial took place before me. The questions are whether:
(a)the Court has jurisdiction either in equity or pursuant to r.54.02 of Chapter 1 to grant the relief the plaintiffs seek against the defendant in the proceeding;
(b)upon the proper construction of the Second Multiple Prospectus Trust Deed … the defendant was released as of 30 June 2004 from any obligation in equity or under the trust deed to provide to the plaintiffs inspection of the documents the subject of the relief the plaintiffs seek.
The originating motion asserts that “[t]he plaintiffs sue the defendant as trustee under a deed of trust dated 9 May 1988 … as trustee of the Second Multiple Prospectus Trust”. But, contrary to that which the originating motion appears to infer, the deed does not create “the Second Multiple Prospectus Trust”. It prospectively creates a number of specified trust funds. Into the first of these must be deposited any moneys representing the subscription price (whether for units or production contribution moneys) to be held by the trustee “as bare trustee for the applicant”[15] until the minimum subscription requirements are met. On this occurring, those applicants whose applications have not been refused shall be deemed to have accepted the number of units for which they have applied, and (subject to payment of the requisite amounts) their units will be allotted to them.[16] Thereupon, as is provided by clause 7.01, “[t]he trustee shall create a separate fund for each prospectus.” At that point, as is specified by clause 7.02 :
“ … the moneys standing to the credit of each production contractor being the amount of the subscription price of each unit applied for to the extent allotted in relation to the relevant application and all amounts subsequently received … shall constitute the relevant fund … to be dealt with as provided in this deed”.
[15] Second Multiple Prospectus Deed, 9 May 1988, clause 3.01.
[16] Ibid, clauses 5.01 and 5.02.
So far as my reading of the Second Multiple Prospectus Deed indicates, the fund to which clause 7.02 refers is, or rather was, the only fund actually held on trust by the trustee for investors (as were the plaintiffs in this case) in the film “Night of the Leopard”. Here, however, the defendant’s position as trustee is confirmed by clause 7.04 of the Second Multiple Prospectus Deed. Under the heading “Declaration of Trust”, the deed “declares that it [i.e. the trustee] shall separately hold each relevant fund and income therefrom in trust for each relevant production contractor subject to the provisions of this deed.” And “the [relevant] provisions of this deed” are to be found, at least in part, in clause 9. The purposes for which “the trustee shall use the moneys in the relevant fund” are set out in clause 9.01. If those purposes have been achieved, or if the moneys remaining in the fund are no longer required for them, the funds are to be transferred to “the relevant fees account” and “treated by the trustee as if they were fees received under the relevant production services agreement(s)”.
The above was foreshadowed by recital G(i) of the Second Multiple Prospectus Deed. It states that “[e]ach person who becomes a production contractor shall pay two amounts to the trustee”. The first of these (being the $100 which is the price of each unit) “will be placed in a fund to be used for the purpose of certain miscellaneous expenditure related to the relevant prospectus and in relation to which units will be issued”.
By contrast to this, the second of the two amounts, which is the $5,000 being the price of each “parcel” of contribution moneys, is by the Second Multiple Prospectus Deed placed under a quite different regime. It is the subject of recital G(ii), and represents:
“Production contribution moneys being moneys required for the person to pay for the further production services which the person has agreed to carry out under each relevant production services agreement.”
One of the consequences of the allotment of any units to an applicant is that “the applicant is deemed to have contemporaneously become a … production contractor”.[17] More importantly for present purposes, “the amount tendered … as production contribution moneys … shall not become part of the relevant fund but shall be held and dealt with by the trustee as provided hereafter”.[18] Upon becoming a production contractor, the applicant for an allotment “appoints the trustee as its agent and attorney for the purpose of entering into the … production services agreement and for the further purposes set out in this deed”.[19] This is then taken up by clause 8.01, which states that the defendant/trustee “shall hold the moneys standing to the credit of the production contractor in the relevant production contribution moneys account as agent for” that contractor.
[17] Second Multiple Prospectus Deed, 9 May 1988, clause 5.03.
[18] Ibid, clause 6.05. My emphasis.
[19] Ibid, clause 6.02.
As such agent, the trustee may (among other things) enter into contracts; make claims; and bring, defend or compromise legal proceedings and claims: clause 11.01. By way of reinforcement of these powers, clause 15.04 of the Second Multiple Prospectus Deed removes any right a production contractor might otherwise have had “to give any direction of whatever form or nature to the trustee in relation to the trustee’s activities … as agent for the production contractor”. Consistently with this, no production contractor may exercise any right or even fulfil any obligation save through the trustee: clause 15.05. Likewise, by clause 19.01, the trustee is the agent of each production contractor for the receipt of the latter’s fees. And any amounts so received must be paid into “the fees account” and pooled “with amounts received as fees for any other production contractors in relation to the same prospectus.”[20]
[20] Second Multiple Prospectus Deed, 9 May 1988, clauses 19.03 and 19.04.
It is clear, then, that by the Second Multiple Prospectus Deed, the trustee is, in the discharge of many of its responsibilities, clothed with the mantle of an agent rather than that of a trustee. It is therefore not helpful or accurate to speak of the “Trust” or the Second Multiple Prospectus Trust Deed (a name that the Deed itself does not adopt). Indeed, one might ask in these circumstances whether the defendant’s designation throughout as “trustee” was appropriate; or whether that designation was anything more than a marketing tool rather than an accurate representation of its role under the Deed. For the defendant itself has argued, in support of its position on the two questions I must answer, that when (for example) the Second Multiple Prospectus Deed authorises “the trustee” to receive fees on behalf of production contractors, it receives those fees not as trustee at all, but in the quite different capacity of agent.
The defendant’s case also implicitly adopts the position that it wore its agent’s hat more frequently and (within the scheme of the Deed) with greater effect, than it did its trustee hat. But the consequence, so the defendant contends, is that it was while acting as agent, and not as trustee, that each of the plaintiffs’ complaints arose. That being so, equity cannot be the source of any relief to which the plaintiffs might be entitled.
One possible response might have been that the defendant is a trustee de son tort, or is otherwise the trustee of a constructive trust. But these arguments were not put, and in any event might not be valid. I have not, therefore, considered them. The plaintiffs did submit, on the authority of Foley v Hill,[21] that the defendant was in the position, if not of a trustee simpliciter, then at least of a quasi trustee. If I am correct about the proper construction of the Second Multiple Prospectus Deed, however, the question whether a relationship of quasi trustee and beneficiary existed is settled in the negative by the terms of the deed.
[21](1848) 2 HL Cas 38.
In further support of its position, the defendant points to each of the complaints upon which this proceeding is founded. The first is the appointment of Equus as a security provider. By recital G of the production services agreement, the defendant “has or will have been separately appointed as agent for [each] production contractor to enter into this agreement with [the] owner”. Then, by schedule 9 of that agreement, the owner must provide such securities for the payment of the base production services fee as are acceptable to and approved by the defendant; while, by clause 10 (h), the defendant is given “the power and authority to act on behalf of” every production contractor.
In my opinion, the defendant was acting not as trustee but as agent when it approved Equus as a security provider. As I have already noted, there is no suggestion of a constructive trust. In those circumstances, the plaintiffs must show not only that the defendant accepted appointment as trustee, which it did to a point, but also that such appointment covered this transaction.
I think that the evidence points the other way. It points to the conclusion that the responsibility being discharged by the defendant in its appointment of Equus was that of an agent only, and not that of a trustee. Accordingly, nothing in the appointment provides any occasion for the invocation of the equitable jurisdiction of the Court.
The second complaint relates to the settlement of the dispute between the defendant and Equus. By clause 11.01(g) of the Second Multiple Prospectus Deed, the defendant “shall have power as the agent and attorney of the production contractor … to compromise any claim or legal proceeding arising out of the interest of the production contractor and relating to any relevant production services agreement.” The claim against Equus arose out of the interest of the plaintiffs in the production services agreement, pursuant to which Equus had been appointed. Prima facie, therefore, the defendant was empowered to do what it did; but at all events it was acting as agent for, and not as trustee of, the plaintiffs. No question of relief in equity arises.
The third complaint is that the defendant wrongly indemnified itself “for its legal costs from the trust fund.”[22] The defendant has sought to meet this claim by assuming that the allegation really was about indemnification not from “the trust fund” but from the fees account. Having made that assumption, the defendant proceeds to contend that the latter account was held by the defendant as agent. It was not held as trustee. At paragraph 55 of its written submissions, the defendant therefore argued that it:
“… was entitled to be indemnified for its legal costs from the fees account. [It] did not hold the funds in the fees account as trustee; it received such funds as agent for the production contractors.”
[22] Affidavit of Reginald Loughran sworn 16 December 2005, para. 20.
I can understand how the defendant came to make the assumption to which I refer. On the material at my disposal, however, it is not justified. I referred above to the fact that, at paragraph 20 of his affidavit, Mr Loughran has sworn that it was to the trust fund that the defendant had resort. And that is the only evidence presently before me. In their affidavits, the deponents upon whom the defendant relies do not address this point.
If the trust fund was indeed the source of the funds from which the defendant recovered its legal costs, then the plaintiffs are entitled to inspect all accounting and other documents relating to the relevant withdrawal. If it was not, then the plaintiffs are at the least entitled to sworn evidence, accompanied by appropriate supporting material, that it was not. On receipt of that evidence, the plaintiffs might be satisfied that the indemnity came from elsewhere, as the defendant in its submissions has asserted. Or they might not. If they are not, then (albeit at the risk of an adverse costs order) they might seek to persist in their present discovery application.
The fourth complaint is that the defendant breached duties owing to the plaintiffs in not accepting the offer of settlement from Epic. For the reasons given in dealing with the second complaint, no occasion arises for the application of equitable remedies. According to paragraph 9 of Mr Loughran’s affidavit, Epic “had agreed to meet directly the obligations of Balmedie to the plaintiffs … for the payment of the further production services fees.” These fees were otherwise to be paid by Balmedie to the defendant “as agent for” the plaintiffs.[23] In those circumstances, the power given by clause 11.01(g) of the Second Multiple Prospectus Deed to compromise any claim is conferred upon the defendant as agent, not as trustee.
[23] Production services agreement, clause 23(b), and Second Multiple Prospectus Deed, clause 19.01.
The final complaint is that the defendant has failed to pursue actions against either Kamisha or Balmedie or both. These claims, assuming that they have substance, concern the payment of the base production services fee. Again, this is an area of responsibility placed upon the defendant as agent. Equitable remedies are therefore not available.
It is in this context that the plaintiffs’ application for inspection of categories of documents must be assessed. One may begin with the proposition that the beneficiaries of a strict (as opposed to a discretionary) trust “have a prima facie right … at reasonable times to inspect … trust documents used by the trustees in the administration of the trust.”[24] For the Privy Council in Schmidt v Rosewood Trust Ltd[25] this was one aspect of the court’s inherent jurisdiction to supervise, and if necessary to intervene in, the administration of trusts.[26]
[24] D Heydon and MJ Leeming Jacobs’ Law of Trusts in Australia LexisNexis Butterworths (2006) para.[1716].
[25] [2003] 2 AC 209.
[26]JD Heydon and MJ Leeming, op. cit.
But the question whether a document is or is not a trust document remains unsettled. While eschewing any attempt at a comprehensive definition, Salmon LJ in Re Londonderry’s Settlement,[27] did the next best thing. He attributed to trust documents three characteristics in common: (i) they are documents in the possession of the trustee as trustee; (ii) they contain information about the trust which the beneficiaries are entitled to know; and (iii) the beneficiaries have a proprietary interest in them, and so are entitled to see them.
[27][1965] Ch. 919 at 938; [1964] 3 All ER 855 at 863.
Although these remarks were dicta, Gillard J in Re Fairbairn referred to them with approval.[28] In that case, his Honour ordered the trustee to produce, for inspection, accounting and other documents generated by the trustees in their administration of a deceased estate. He did so on the basis, which I respectfully adopt, that “prima facie the plaintiff qua beneficiary, would be entitled to inspect any property forming part of the deceased’s estate in which he was beneficially interested.”[29] In my opinion, the plaintiffs here were prima facie entitled, while the relationship of trustee and beneficiary remained extant, to inspect documents then forming part of any property being held in trust for them by the defendant, or containing information about the defendant’s administration of trust funds in respect of which the plaintiffs were then beneficiaries.
[28] [1967] VR 633 at 639.
[29] Ibid, at 635.
I say this while accepting the criticism of the learned authors of Jacobs’ Law of Trusts in Australia. As Heydon and Leeming point out,[30] the reasoning of his Lordship in Re Londonderry’s Settlement is circular. In the words of the learned authors of Jacobs’ Law of Trusts in Australia (2006 edition), “[i]t is of little assistance in seeking to elucidate the principle that every beneficiary has a proprietary right to inspect trust documents to be told that trust documents are those documents that every beneficiary has a proprietary right to inspect.”[31]
[30] JD Heydon and MJ Leeming, op. cit.
[31] JD Heydon and MJ Leeming, op. cit.
The defendant, of course, has a more fundamental objection to the classification as “trust documents” of the documents sought by the plaintiffs. The defendant argues that the plaintiffs are caught by the evidence led by them in support of this application. That evidence is directed towards, and only towards, the substantiation of the grievances to which I referred above. But any delinquencies arose, if they arose at all, only out of acts or omissions of the defendant acting as agent, not as trustee. Yet it is against the defendant as trustee, not as agent, that the present application for production of documents is made.
To a point, I accept the defendant’s submissions. This is the primary reason why the plaintiffs are not in my opinion entitled to an order in the terms of sub-paragraphs (b), (c), (f), (g) and (h) of paragraph 1 of the originating motion. On the other hand, while I also accept the defendant’s contention that the plaintiffs must support their application for inspection of documents only upon the material put before the Court, that material does include the sworn assertion that the defendant indemnified itself from “the trust fund”.
I am not confident that when, in paragraph 20 of his affidavit, Mr Loughran referred to “the trust fund”, he was referring to the amount representing the subscription price the subject of clause 3.01 of the Second Multiple Prospectus Deed. Nor am I confident that he was referring to the fund the subject of clause 7. Both were held in trust by the defendant, and if my lack of confidence is misplaced then the plaintiffs are entitled to pursue their claim for inspection of documents relating to the management of those funds. Nevertheless, it is I think entirely possible that, in reality, the plaintiffs’ complaint is about indemnification from the fees account. This the defendant operated as agent, and no order for inspection of documents relevant to its management can, in the exercise of the Court’s equitable jurisdiction, be made.
The defendant submits that the production services deed has been cancelled, that a final distribution from the fees account has been made, and that therefore there is nothing upon which the equitable jurisdiction of the Court can operate to give the plaintiffs the relief they seek. In particular, r.54.02 cannot apply when the administration of the trust property has been completed.
This submission is good as far as it goes. Even if otherwise applicable, however, the fact that a former trustee has ceased to hold that office would not be a ground for resisting a claim by former beneficiaries to inspect documents that might evidence a breach of trust.
It follows that such entitlement as the plaintiffs may have depends upon elucidation of their true position. Unless the plaintiffs amend the originating motion to make it plain that their application for inspection is limited to documents related either to the amounts the subject of clause 3 of the Second Multiple Prospectus Deed, or to the fund the subject of clause 7, or to both, then in my opinion the originating motion should be dismissed. I will give the plaintiffs an opportunity to consider their position.
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