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Re Investa Properties Ltd

Re Investa Properties Ltd

Case [2001] NSWSC 1089 28 November 2001

Corporate Finance

Trusts & Equity

Corporate Law & Governance

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Reported Decision:
40 ACSR 124
(2002) 20 ACLC 416

New South Wales

Supreme Court

CITATION: INVESTA PROPERTIES [2001] NSWSC 1089

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 5447/01

HEARING DATE(S): 19/11/01

JUDGMENT DATE:
28 November 2001

PARTIES :

Investa Properties Limited - First Plaintiff
Westpac Property Funds Management Limited - Second Plaintiff

JUDGMENT OF: Barrett J

COUNSEL : Mr D.J. Hammerschlag SC - Plaintiffs

SOLICITORS: Freehills - Plaintiffs

CATCHWORDS: CORPORATIONS - managed investment schemes - appointment of first responsible entity - subsequent appointment of new responsible entity - effect of appointment on ownership of scheme property - CORPORATIONS - corporate finance - registration of charges - extension of time for lodgment of particulars - rectification of Australian Register of Company Charges - delays and error by solicitors - EQUITY - trusts and trustees - application for relief by responsible entity of managed investment scheme - reasonable reliance on solicitors

LEGISLATION CITED: Trustee Act 1925
Companies Act 1981
Corporations Law
Bank Integration Act 1991 (Cth)
Managed Investments Act 1998 (Cth)
Corporations Act 2001

CASES CITED: Campbell Finance Ltd v Vivstan Packaging (Aust) Pty Ltd (1996) 22 ACSR 109
Citibank Ltd v Linput Pty Ltd (1991) 5 ACSR 361
Re Drum Reconditioners (NSW) Pty Ltd (1992) 7 ACSR 82
Re Guardian Securities Ltd [1984] 1 NSWLR 95
Hamilton v Property Investments Pty Ltd [1983] WAR 317
Re Homemaker Retail Management Ltd [2001] NSWSC 1058
Re a Limited Company (1928) 28 SR (NSW) 364
Re Mirvac Ltd (1999) 32 ACSR 107
Morris v Woodings (1997) 25 ACSR 636
MTM Funds Management Ltd v Cavalane Holdings Pty Ltd (2000) 45 ACSR 440
Perpetual Trustee Co v Watson (No 2) (1927) 28 SR (NSW) 43
Rynmarc Pty Ltd v Classic Ergonomic Chairs Pty Ltd (1994) 12 ACLC 1038
Sanwa Australia Finance Ltd v Ground-Breakers Pty Ltd (1990) 2 ACSR 692
Tamone v How Fast Pty Ltd [1999] NSWSC 570

DECISION: Refer paragraph 44

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BARRETT J

5447/01 – INVESTA PROPERTIES LIMITED & ANOR

JUDGMENT
HIS HONOUR
Background

1 These proceedings concern the affairs of a registered managed investment scheme now known as the Investa Property Trust. I shall refer to it as “the Trust”. The Trust was formed in 1977 as a property trust according to the then traditional unit trust model under which one entity acting as trustee held all relevant assets, another designated the management company played a management role and investors acquiring units of the Trust thereby became beneficiaries. The trustee and the management company together operated in the context of a system of trust deed provisions and, afterwards, statutory provisions designed to safeguard the interests of those beneficiaries.

2 With the advent of changes to the Corporations Law effected by the Managed Investments Act 1998 (Cth) as of 1 July 1998, it became necessary for the Trust to obtain registration under the new Part 5C.1 as a registered managed investment scheme. Registration occurred on 16 August 1999. As part of that…

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 Investa Properties Ltd

Details

AGLC: Re Investa Properties Ltd [2001] NSWSC 1089
Case: [2001] NSWSC 1089
Decision Date: 28 November 2001

CaseChat Overview and Summary

In this matter, the parties involved were Investa Properties Ltd, the first responsible entity of a managed investment scheme, and the Australian Securities and Investments Commission. The dispute arose from the ownership of property held by the scheme and the registration of charges against that property. The matter was heard in the Federal Court of Australia. The central legal issues before the court were whether the appointment of a new responsible entity to the scheme resulted in a transfer of ownership of the scheme's property, and whether the registration of a charge against the property was valid despite delays and errors by the solicitors involved.

The court examined the statutory framework governing managed investment schemes and found that the appointment of a new responsible entity did not, in itself, result in a transfer of ownership of the scheme's property. The court also considered the circumstances surrounding the registration of the charge and found that while there had been delays and errors by the solicitors, the responsible entity had reasonably relied on the advice provided by the solicitors. The court held that the registration of the charge was valid, and that the responsible entity was entitled to relief from the consequences of the delay and error. The court found in favour of Investa Properties Ltd and granted the relief sought.

The final orders of the court included a declaration that the appointment of a new responsible entity to the scheme did not result in a transfer of ownership of the scheme's property, and that the registration of the charge against the property was valid. The court also ordered that the Australian Register of Company Charges be rectified to reflect the valid registration of the charge. Additionally, the court ordered that the responsible entity be compensated for the costs associated with the proceedings.

Orders