Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd

The matter before the court was a dispute between Perpetual Trustees (WA) Ltd, the plaintiff, and Equuscorp Pty Ltd, the defendant. The plaintiff sought to enforce the terms of a Deed of Settlement against the defendant, which was the assignee of the first defendant in the proceedings. The plaintiff, a trustee, sought to enforce the terms of the Deed of Settlement against the defendant, who had been assigned the rights of the first defendant. The Deed of Settlement was entered into between the plaintiff and the first defendant, with the defendant subsequently assigning the rights to the current defendant.

The primary legal issue before the court was whether the Cherry v Boultbee equity applied to the defendant as the assignee of the first defendant. The court was also required to determine the construction of the Deed of Settlement, specifically whether it was to be construed as a release or a covenant not to sue. Another issue was whether the plaintiff was required to retire as trustee prior to the approval of a new trustee by the Australian Securities and Investments Commission (ASIC). Lastly, the court had to consider the nature of ASIC's powers under section 1067 of the relevant legislation and how these powers should be exercised to enable an efficient and effective transfer from the retiring trustee to the new trustee.

The court held that the Cherry v Boultbee equity did not apply to the defendant as the assignee of the first defendant. The Deed of Settlement was construed as a covenant not to sue, and not a release. The court found that the plaintiff was not required to retire as trustee prior to the approval of a new trustee by ASIC. The court also found that ASIC's powers under section 1067 were broad and should be exercised to enable an efficient and effective transfer from the retiring trustee to the new trustee. The court ruled in favour of the defendant and dismissed the plaintiff's claims.

The court ordered that the defendant was not required to pay any damages to the plaintiff and that the Deed of Settlement was to be construed as a covenant not to sue. The court further ordered that the plaintiff's claims against the defendant were dismissed with costs.