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Re Stacks Managed Investments Ltd

Re Stacks Managed Investments Ltd

Case [2005] NSWSC 753 29 July 2005

Winding Up & Liquidation

Statutory Interpretation

Corporate Liquidator Powers

Corporate Law & Governance

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Reported Decision:
54 ACSR 466
(2005) 23 ACLC 1647

New South Wales

Supreme Court

CITATION:
Stacks Managed Investments Ltd [2005] NSWSC 753

HEARING DATE(S): 30/05/05, 21/07/05

JUDGMENT DATE :

29 July 2005

JUDGMENT OF:
White J

DECISION:
Originating process dismissed; exhibits may be returned after 28 days.

CATCHWORDS:
CORPORATIONS - Managed Investment Schemes - Registered scheme - Application to wind up managed investment scheme on just and equitable grounds - Orders sought included appointment of liquidators to take responsibility for winding-up and conferral of powers similar to those of a company liquidator - Scheme was already being wound up pursuant to a members' resolution - Current responsible entity having difficulties with obtaining documents from, inter alia, the previous responsible entity - Orders sought in order to facilitate winding-up - Corporations Act s 601FS, 601ND, 601NF - Held that appointment of proposed liquidators not necessary - Statute does not provide for conferral of corporate liquidator powers on entity winding up a registered scheme.

LEGISLATION CITED:
Corporations Act 2001 (Cth)
Managed Investments Act 1998 (Cth)
Managed Investments Bill, 1987

CASES CITED:
Australian Securities and Investments Commission v Commercial Nominees Ltd (2002) 194 ALR 743
28 ACLC 1238; 42 ACSR 240)
Australian Securities and Investments Commission v Takaran (No. 2) (2003) 21 ACLC 12; (2002) 43 ACSR 334
Australian Securities and Investments Commission v Atlantic 3 Financial (Aust) Pty Ltd (No. 3) [2003] QSC 386
Australian Securities and Investments Commission v Edwards (2004) 22 ACLC 1469
Australian Securities and Investments Commission v Tasman Investment Management Pty Ltd (2004) 50 ACSR 153
Australian Securities and Investments Commission v Landy DFK Securities Ltd (2002) 123 FCR 548
Re Brighton Joint Venture Partner No. 2 Scheme; Australian Securities and Investments Commission v Primelife Corp Ltd [2005] FCA 704
Australian Securities and Investments Commission v ABC Fund Managers Ltd (No. 3) [2001] VSC 397
Australian Securities and Investments Commission v McNamara [2002] FCA 1005
Chief Commissioner of Stamp Duties for NSW v Buckle (1998) 192 CLR 226
Horwarth Corporate Pty Ltd v Huie (1999) 32 ACSR 43
Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151
Australian Law Reform Commission and the Companies and Securities Advisory Committee on "Collective Investments: Other People's Money" (ALRC report No. 65, 1993)
Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd) [2001] WASC 339
Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674
Editions Tom Thompson Pty Ltd v Pilley (1997) 77 FCR 141
Jacobs, Law of Trusts in Australia, 6 ed
Scott on Trusts, 4 ed

PARTIES:
Application of Stacks Managed Investments Ltd as responsible entity of the Premium Mortgage Income Fund

FILE NUMBER(S):
SC 3817/05

COUNSEL:
Applicant: B Coles QC, R McHugh, V Whittaker

SOLICITORS:
Applicant: Kemp Strang

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 29 July 2005

3187/05 Application of Stacks Managed Investments Ltd as responsible entity of the Premium Mortgage Income Fund

JUDGMENT

1 HIS HONOUR: This is…

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 Stacks Managed Investments Ltd

Details

AGLC: Re Stacks Managed Investments Ltd [2005] NSWSC 753
Case: [2005] NSWSC 753
Decision Date: 29 July 2005

CaseChat Overview and Summary

Re Stacks Managed Investments Ltd involved the application to wind up a registered managed investment scheme on just and equitable grounds. The applicant sought orders to appoint liquidators to take responsibility for the winding-up process and to confer on these liquidators powers similar to those of a company liquidator. The scheme was already being wound up pursuant to a members' resolution, but the current responsible entity faced difficulties in obtaining documents from the previous responsible entity. The application sought to facilitate the winding-up process by seeking these orders.

The primary legal issues before the court were whether the proposed liquidators should be appointed and whether their powers should be similar to those of a corporate liquidator. The applicant argued that the difficulties in obtaining necessary documents necessitated the appointment of liquidators with specific powers to manage the winding-up process effectively. The court needed to determine if the Corporations Act provided for such powers and whether they were appropriate for entities winding up a registered scheme.

The court found that the appointment of the proposed liquidators was not necessary. It held that the Corporations Act did not provide for the conferral of corporate liquidator powers on entities winding up a registered scheme. The court emphasised that the act did not contemplate the same level of intervention in the winding-up process of a managed investment scheme as it did for a company. Consequently, the court did not grant the orders sought by the applicant.

No orders were made appointing the proposed liquidators or conferring powers on them similar to those of a company liquidator. The winding-up process continued under the existing members' resolution, with the court's decision affirming the limitations of the powers that could be granted to entities in this context.

Orders