Re AGW Funds Management Limited - [2017] VSC 124

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

SCI 2017 00916

IN THE MATTER OF AN APPLICATION BY AGW FUNDS MANAGEMENT LIMITED (ABN 64149 301299) (IN ITS CAPACITY AS RESPONSIBLE ENTITY OF EACH OF THE MANAGED INVESTMENT SCHEMES LISTED IN SCHEDULE 1) FOR JUDICIAL ADVICE AND DIRECTIONS UNDER RULE 54.02 OF THE SUPREME COURT (GENERAL CIVIL PROCEDURE) RULES 2015 (VIC)
AGW FUNDS MANAGEMENT LIMITED (ABN 64 149 301 299)

---

JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2017
DATE OF JUDGMENT:	24 March 2017
CASE MAY BE CITED AS:	Re AGW Funds Management Limited
MEDIUM NEUTRAL CITATION:	[2017] VSC 124

---

TRUSTS AND TRUSTEES – Application by solvent responsible entity of three managed investment schemes for judicial advice – Supreme Court (General Civil Procedure) Rules 2005, r 54.02.

TRUSTS AND TRUSTEES – Judicial advice – Scope of advice proceeding – Court’s power discretionary.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M McKillop	Minter Ellison Lawyers
For the Defendant	G Douglas	Sarah Davies Legal Pty Ltd

HIS HONOUR:

The plaintiff, AGW Funds Management Limited (‘AGW’) is the responsible entity of three managed investment schemes referred to in the schedule to the Originating Motion. These are:

(a) AGW Walnut Scheme No (1) (ARSN 119 514 724);

(b) AGW Walnut Scheme No (2) (ARSN 125 191 531);

(c) AGW Walnut Scheme No (3) (ARSN 136 845 022).

AGW (or the Trustee) seeks a direction or judicial advice under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) that, as responsible entity of the three schemes, it is justified in accepting an offer from Webster Limited (‘Webster’) dated 27 January 2017 for the sale of all of the 2017 walnut crop (‘the Webster Offer’).

The application is supported by an affidavit of Timothy Christopher Holmes (‘Holmes Affidavit’), the general manager of AGW, together with a supplementary affidavit by Mr Holmes (‘Second Holmes Affidavit’), both affirmed on 16 March 2017.

The application was opposed by a group of growers (‘the Growers’) represented by Sarah Elizabeth Davies (‘Davies’), a solicitor practising in Buderim in the State of Queensland.

The Originating Motion is dated 16 March 2017. The application was heard at 2.15pm on that day. Ms Douglas of Counsel, instructed by Davies was given leave to appear on behalf of the Growers. Ms Douglas filed an affidavit sworn by Davies on 16 March 2017 (‘the Davies Affidavit’). Ms Douglas applied for an adjournment of the application in order to file and serve additional affidavits as contemplated by paragraph 13 of the Davies Affidavit. It was contended that the additional affidavits would show that the Trustee was not acting properly and in particular had not given fair or proper consideration to all relevant issues including price.

At the conclusion of the hearing on 16 March, I reserved my decision and indicated that I would give my decision at 10am…

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.

Keep reading for free

Create a free CaseChat account to read Re AGW Funds Management Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSC 124
Decision Date: 24 March 2017

CaseChat Overview and Summary

Re AGW Funds Management Limited involved a solvent responsible entity seeking judicial advice concerning three managed investment schemes. The entity, AGW Funds Management Limited, applied to the Supreme Court of Victoria under rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005. The court's role was to provide guidance on the interpretation of the law in relation to the management and operation of the trusts.

The central legal issues before the court were the scope of judicial advice that could be provided to the responsible entity and the circumstances in which such advice might be granted. Specifically, the court needed to determine whether it had the discretion to offer advisory assistance to a solvent responsible entity and, if so, under what conditions such advice would be appropriate. The court also considered whether the advice proceeding should be limited to particular legal matters or if it could encompass broader operational and regulatory questions.

In its decision, the court clarified that the power to provide judicial advice in such matters was discretionary. It acknowledged that the primary purpose of the judicial advice proceeding was to ensure the proper administration of trusts and to address uncertainties that might affect the interests of the beneficiaries. The court held that while it could provide guidance on the interpretation of relevant laws and regulations, the scope of the advice should be carefully circumscribed to avoid encroaching on the administrative functions of the responsible entity. The court ultimately found that it could offer the requested advice, subject to certain limitations, to assist AGW Funds Management Limited in managing the investment schemes effectively.

The court's final orders provided the requested judicial advice on specific legal issues raised by the responsible entity, while also setting clear boundaries to prevent the advice from extending into operational decisions or broader regulatory interpretations.

Orders