Re Equititrust Ltd

Case [2011] QSC 353

SUPREME COURT OF QUEENSLAND

CITATION:

Re Equititrust Ltd [2011] QSC 353

PARTIES:

EQUITITRUST LTD
ACN 061 383 944
(applicant)
v
THE MEMBERS OF THE EQUITITRUST INCOME FUND AND THE EQUITITRUST PRIORITY CLASS INCOME FUND
(respondents)

FILE NO:

BS 10478 of 2011

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

21 and 23 November 2011

JUDGE:

Applegarth J

ORDERS:

Orders for two registered schemes to be wound up pursuant to s 601ND of the Corporations Act 2001 (Cth), for the appointment of a person to take responsibility for ensuring that each registered scheme is wound up and for the same person to be appointed as a receiver of the property of each scheme.

CATCHWORDS:

CORPORATIONS – MANAGED INVESTMENTS – WINDING UP – where company applied to Court for the winding up of two registered schemes of which it was the responsible entity and for the appointment of a temporary responsible entity – where circumstances of urgency exist due to impending lapse of insurance for officers of company – where directors indicated that they would resign upon lapse of insurance – where the administration of the schemes had broken down and the schemes’ purposes could no longer be accomplished – where the company was in breach of the Corporations Act 2001 (Cth) and of conditions of its financial services licence – whether the Court had jurisdiction to appoint a temporary responsible entity – whether the Court should order the winding up of the schemes – whether the Court should appoint a receiver to the property of each scheme

Corporations Act 2001 (Cth) s 601FA, s 601FN, s 601FP, 601ND, s 601NF, s 1101B

Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 cited

Capelli v Shepard (2010) 264 ALR 167; [2010] VSCA 2 cited
Re Crust ‘N’ Crumb Bakers (Wholesale) Pty Ltd [1992] 2 Qd R 76 cited
Joye v Beach Petroleum N.L. (1996) 67 FCR 275 cited
Mier v FN Management Pty Ltd [2006] 1 Qd R 339; [2005] QCA 408 discussed

Re PWL Ltd; Ex parte PWL Ltd (formerly Palandri Wines Ltd) (No 2) [2008] WASC 232 cited
Re Rubicon Asset Management Ltd (2009) 74 ACSR 346; [2009] NSWSC 1068 discussed
Re Stacks Managed Investments Ltd (2005) 219 ALR 532; [2005] NSWSC 753 discussed
Westfield Management Ltd v AMP Capital Nominees Ltd [2011] NSWSC 1015 cited
Yunghanns v Candoora No. 19 Pty Ltd (No 2) (2000) 35 ACSR 34; [2000] VSC 300 cited

COUNSEL:

P L O’Shea SC and J W Peden for the applicant
A S Martin SC and G M Drew for certain members
D R W Tucker (solicitor) for a member, Tucker SF Pty Ltd
T P Sullivan SC and S R R Cooper for the Australian Securities and Investments Commission intervening
D D Keane instructed directly by Lion Advantage Ltd, an applicant for appointment as a temporary responsible entity (21 November 2011)
J W…

Continue reading Re Equititrust Ltd

Sign in free to access the full text

Details
AGLC
Re Equititrust Ltd [2011] QSC 353
Case
[2011] QSC 353
Decision Date

CaseChat Overview and Summary

In the matter of Equititrust Ltd, the Court was presented with an application by the Australian Securities and Investments Commission (ASIC) for the winding up of two registered managed investment schemes. The application was brought due to the impending lapse of insurance for the company's officers and the breakdown in the administration of the schemes, which rendered their purposes unachievable. The directors of the company had indicated their intention to resign once the insurance lapsed, and the company was in breach of the Corporations Act 2001 (Cth) and the conditions of its financial services licence.

The primary legal issues before the Court were whether it had the jurisdiction to appoint a temporary responsible entity for the schemes, whether it should order the winding up of the schemes, and whether it should appoint a receiver to the property of each scheme. The Court considered the statutory provisions and case law relevant to the winding up of managed investment schemes, the appointment of receivers, and the role of the Court in such matters.

The Court found that it had jurisdiction to appoint a temporary responsible entity and to order the winding up of the schemes. It concluded that the circumstances presented an urgent situation warranting immediate intervention to protect the interests of investors and to ensure the proper administration of the schemes. The Court also determined that appointing a receiver to the property of each scheme was necessary to safeguard the assets and to facilitate the orderly winding up process. The Court's decision was based on the clear evidence of the company's breaches, the breakdown in scheme administration, and the impending loss of insurance coverage for the company's officers.

The Court ordered the winding up of the two registered schemes, appointed a person to ensure the winding up process, and appointed the same person as a receiver of the property of each scheme. The orders were made pursuant to section 601ND of the Corporations Act 2001 (Cth), reflecting the Court's authority and the urgency of the situation.

Orders

Orders of the court

Orders for two registered schemes to be wound up pursuant to s 601ND of the Corporations Act 2001 (Cth), for the appointment of a person to take responsibility for ensuring that each registered scheme is wound up and for the same person to be appointed as a receiver of the property of each scheme.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.