JUDGE:	LYONS J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2021
DATE OF JUDGMENT:	6 December 2021
CASE MAY BE CITED AS:	Re Care Super Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 805

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EQUITY – Judicial advice – Supreme Court (General Civil Procedure) Rules2015 (Vic) r 54.02 – Jurisdiction of court to provide advice – Factors relevant to discretion to provide advice – Degree of satisfaction required before the court should give advice – When court may provide advice even though advice affects persons not represented at hearing.

JUDICIAL ADVICE – Advice sought that consolidated deed the operative deed of the trust – Not all copies of amending deeds available – Degree of satisfaction required before the court should give advice – Presumption of regularity – Court satisfied to a reasonable degree of satisfaction on inferences and presumption of regularity – Advice provided.

JUDICIAL ADVICE – Advice sought that shares in plaintiff trustee held by directors of plaintiff personally and not on behalf of trust – Court satisfied to a reasonable degree of satisfaction that shares held personally – Advice provided.

JUDICIAL ADVICE – Whether trustee justified in determining a fee for services including by reference to a risk that penalties may be imposed under Commonwealth legislation for which the trustee cannot be indemnified under Superannuation Industry (Supervision) Act 1993 (Cth) ss 56(2) and 57(2) – Fee so determined not in contravention of the Superannuation Industry (Supervision) Act 1993 (Cth) – Whether plaintiff established that it intended to determine fee in accordance with judicial advice – Whether court would exercise discretion to give advice when the plaintiff did not establish that it intended to determine fee in accordance with judicial advice – Advice refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms D. Hogan-Doran SC with Ms E. Poole	Mills Oakley
For the Australian Prudential Regulation Authority (appearing as amicus curiae)	Dr R. Austin with Mr D. Allen
Appearing as amicus curiae appointed by the Court	Ms W. Harris QC with Ms G. Crafti	Herbert Smith Freehills

TABLE OF CONTENTS

1... INTRODUCTION........................................................................................................................ 1

2... EVIDENCE, CONFIDENTIALITY AND THE STRUCTURE OF THESE REASONS... 4

3... NATURE OF JUDICIAL ADVICE APPLICATIONS........................................................... 6

4... OVERVIEW OF THE FUND, ITS GOVERNANCE AND OPERATIONS.................... 11

5... THE SIS ACT AND OTHER RELEVANT LEGISLATION.............................................. 13

5.1.... Overview............................................................................................................................. 13
5.2.... Part 6 of the SIS Act........................................................................................................... 14
5.3.... Relevant Prudential Standards........................................................................................ 16

6... THE FIRST ISSUE: THE TRUST DEED ADVICE.............................................................. 17

6.1 ... Relevant Facts..................................................................................................................... 19
6.1.1... The plaintiff and the Original Deed.................................................................... 19
6.1.2... 1998 Deed................................................................................................................ 20
6.1.3... 2003 Deed................................................................................................................…

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.

Continue reading Re Care Super Pty Ltd

Details

AGLC: Re Care Super Pty Ltd [2021] VSC 805
Case: [2021] VSC 805
Decision Date: 6 December 2021

CaseChat Overview and Summary

In the matter of Re Care Super Pty Ltd, the dispute involved the interpretation and consolidation of legal documents relating to a trust. The Supreme Court of Victoria was tasked with providing judicial advice on various aspects of the trust, including the consolidation of deeds, the holding of shares by the trustee, and the determination of fees. The plaintiff, Care Super Pty Ltd, sought advice on these matters to ensure compliance with relevant laws and to clarify the operational aspects of the trust.

The primary legal issues before the court were whether it had the jurisdiction to provide advice under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02, and if so, what degree of satisfaction was required before such advice could be given. Additionally, the court had to consider whether it could provide advice affecting parties not represented at the hearing and whether it was appropriate to proceed based on the presumption of regularity when not all relevant documents were available.

The court determined that it had the jurisdiction to provide advice under the relevant rules and that it could do so even if the advice affected parties not represented at the hearing. The court found that it was satisfied to a reasonable degree based on the inferences drawn from the available evidence and the presumption of regularity. This satisfaction was sufficient to provide advice on the consolidation of deeds and the personal holding of shares by the trustee. However, regarding the determination of fees, the court found that the plaintiff had not established its intention to determine the fee in accordance with the judicial advice, and therefore declined to exercise its discretion to provide advice on this matter.

The court concluded that the advice on consolidating deeds and the personal holding of shares would be provided, but refused to give advice on the determination of fees. This decision was based on the lack of evidence that the plaintiff intended to act on the advice, as required by the Superannuation Industry (Supervision) Act 1993 (Cth).

Orders