Loughran v Perpetual Trustees WA Ltd - [2007] VSC 50

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…

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: [2007] VSC 50
Decision Date: 5 March 2007

CaseChat Overview and Summary

The case of Loughran v Perpetual Trustees WA Ltd involved the plaintiffs seeking an order for the defendant, Perpetual Trustees WA Ltd, to provide them with access to certain documents. The plaintiffs, who had invested in a film investment scheme, were in dispute with the defendant regarding the operation of the scheme. The case was heard in the Supreme Court of Western Australia. The primary issue before the court was whether the defendant, in its capacity as trustee of the scheme, was required to disclose the documents to the plaintiffs, or if the defendant was acting more in an agency role, thus limiting the scope of disclosure.

The court had to determine whether the defendant was acting as a trustee, which would necessitate disclosure under the relevant equitable principles, or whether it was acting more in an agency capacity, which would not require such disclosure. The plaintiffs argued that they were entitled to inspect the documents to ascertain the true nature of the defendant's role and the operations of the investment scheme. The court examined the terms of the trust deed and the nature of the defendant's obligations under it. It was also necessary to consider the provisions of the General Rules of Procedure in Civil Proceedings 1996, particularly rule 54.02, which deals with the disclosure of documents in civil proceedings.

After considering the arguments presented, the court determined that the defendant was acting in a trustee capacity, which created an equitable obligation to disclose relevant documents to the plaintiffs. The court held that the plaintiffs were entitled to inspect the documents held by the defendant to understand the true nature of the investment scheme and the defendant's role within it. The court's decision was grounded in the equitable principles that govern trustees' duties, as well as the procedural rules that facilitate access to documents in civil litigation. The court ordered the defendant to provide the plaintiffs with access to the specified documents, thereby enabling the plaintiffs to pursue their claims with the necessary information.

Orders