Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2022 02457

BETWEEN:

VASCO TRUSTEES LIMITED (ACN 138 715 009) (as responsible entity for the Heritage Lodge Scheme)	Plaintiff
- and -
AUSTRALIAN AND PACIFIC INVESTMENT CORPORATION PTY LTD (ACN 005 445 107) IN ITS OWN CAPACITY AND IN ITS CAPACITY AS REPRESENTATIVE OF THE MEMBERS OF THE HERITAGE LODGE SCHEME (ARSN 089 099 249) and others (according to the attached Schedule)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2024
DATE OF JUDGMENT:	29 August 2024
CASE MAY BE CITED AS:	Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 515

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CONTRACT LAW — Managed investment scheme — Construction of contractual terms — Power of a responsible entity to introduce “evergreen” licencing agreement with scheme members that does not provide right of members to terminate —Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 — Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 — Shepparton Projects Pty Ltd v Cave Investments PtyLtd [2010] VSC 504 — Wellington Capital Ltd v Australian Securities and Investments Commission (2014) 254 CLR 288.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Harvey KC G Lubofsky	Hall & Wilcox
For the First Defendant	M Galvin KC J Schulz	Colin Biggers & Paisley

Contents

A.. Background

B.. Documents of the scheme

B.1          Scheme constitution
B.2          Scheme prospectus
B.3          Hotel Management Agreement
B.4          Lot Leases and Room Management Agreements
B.4.1        Original RMA
B.4.2        Evergreen RMA

B.5 Contracts of Sale

C.. APIC’s interests

D.. Principles

E... Submissions

E.1 The Opening Date
E.2 Evergreen RMAs

F... Consideration

F.1 The Opening Date
F.2 Validity of the Evergreen RMAs

HER HONOUR:

A Background

These reasons deal with two preliminary questions in a dispute between the responsible entity of a registered managed investment scheme and members of the scheme. The first question is what is the ‘Opening Date’ as defined in the relevant documents of the scheme and the second addresses the validity of agreements between some scheme members and the responsible entity. The factual circumstances that give rise to the preliminary questions are detailed below. Broadly, a member of the scheme has given notice of termination of the relevant agreement it has with the responsible entity on the basis that the maximum period of the agreement has expired. The responsible entity contends that the maximum period has not yet expired and, in any event, the terms of the relevant agreement do not permit the members of the scheme to give notice.
Yarra Valley Golf Pty Ltd (the Developer) developed property known as the Heritage Golf and Country Club. The development involved the construction of golf courses and clubhouse facilities as well as a hotel. The hotel was constructed with 96 rooms and 6 suites initially called Sebel Heritage Lodge (the Hotel). Title to the Hotel was to be created pursuant to a plan of subdivision. The Hotel is currently known as Yarra Valley Lodge.
The Heritage Lodge Scheme (the scheme) is a registered managed investment scheme. Investors in the scheme (members or holders) purchase freehold title to a room or suite in the Hotel (lots) and obtain membership and playing rights at the associated golf club. The Hotel has a conference centre, reception, restaurant and bar facilities which are contained on one lot under the subdivision, called the management lot. There are also common areas of the Hotel in which individual lot owners and the management lot owner all have an indivisible interest.
The scheme generates income for members by operating the Hotel. Members have a pro rata interest in the Hotel’s accommodation business, common property of the Hotel and certain funds.[1] The scheme is managed by a responsible entity on behalf of members. The responsible entity is also the manager of the body corporate created under the plan of subdivision. The responsible entity entered into a hotel management agreement (HMA) with a hotel manager to run the Hotel. Investors wishing to purchase title and become members of the scheme are required to enter into a room management agreement (RMA) with the responsible entity, which grants the responsible entity occupation of a member’s lot for the purpose of conducting the business of the Hotel. In turn the responsible entity licences occupation to the hotel manager.
[1]‘The Heritage Lodge Scheme for the Sebel Heritage Lodge Prospectus’ which forms part of exhibit bundle LR-1, Plaintiff, ‘Affidavit of Lyn Ridley’ sworn 29 September 2022 in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, exhibit pages 386-462, which forms tendered exhibit 1 (‘Affidavit of Lyn Ridley sworn 29 September 2022’)(‘Prospectus’).
The scheme operates pursuant to a constitution deed poll dated 13 August 1999 between the initial responsible entity and the holders (the scheme constitution). Clause 1 of the scheme constitution defines holders as each person who from time to time holds a holder’s interest.
In addition to the scheme constitution, the critical documents giving effect to the scheme are:
(a)A HMA between the responsible entity and a hotel manager. The original HMA was entered into between YVG Management Ltd (YVG) and Mirvac Hotels Pty Ltd (Mirvac) in October 1999 (the original HMA). The original HMA was replaced by another HMA dated 28 June 2002 between YVG as the responsible entity and Mirvac as the hotel operator only, and introduced Glenbelle Pty Ltd (Glenbelle) who had agreed to acquire the management lot from Mirvac (the current HMA). Both HMAs are for a finite period, with an initial term of 10 years and two options to extend up to a total period of 20 years; and
(b)Lot leases between the Developer and the responsible entity giving occupation of rooms in the Hotel to the responsible entity. Lot leases were entered into in October 1999. Lot leases were first replaced by RMAs in approximately May 2002 (the original RMAs). Lot leases and the original RMAs that replaced them were subject to the relevant HMA and were valid for at least the same period, being a period of up to twenty years.
The original HMA and a lot lease are schedules to the scheme constitution.
The management lot was initially sold by the Developer to Mirvac who was also the hotel manager. The management lot is also subject to the current HMA by which the management lot owner, the hotel manager and the responsible entity on behalf of holders, agree that the hotel manager will manage all lots including the management lot collectively as the Hotel.
The original responsible entity, YVG, was replaced in August 2009. Two other entities acted in this capacity before Vasco Trustees Limited (ACN 138 715 009) (Vasco, the plaintiff) became the responsible entity on 1 October 2016. Mirvac, as hotel manager has since been replaced by Yarra Valley Lodge Pty Ltd (ACN 159 460 303) (YVL, the third defendant). As mentioned above, Mirvac sold the management lot to Glenbelle in 2002. The current management lot owner is Austpac Properties Pty Ltd (ACN 140 675 216) (Austpac, the second defendant).
Australian and Pacific Investment Corporation Pty Ltd (ACN 005 445 107) (APIC, the first defendant) is a member of the scheme. It owns two lots, being Lot 112 and Lot 131. It is sued in this proceeding both in its capacity as the owner of two lots and as a representative of scheme members.
The current HMA dated 28 June 2002 is expressed to operate for an initial term of 10 years, commencing on the ‘Opening Date’, as defined. The initial term has been extended twice to a maximum period of 20 years from the Opening Date.
The lot leases and original RMAs as contemplated by both the original and current HMAs were initially tied to the period of the relevant HMA and continued thereafter by consent, with either party having the right to terminate on notice. From about 2016, the responsible entity introduced what has been referred to as an evergreen RMA, one which was to be in force until such time as the scheme is wound up. APIC has executed evergreen RMAs with respect to its two lots, Lot 112 and Lot 131.
APIC gave notice to terminate its two RMAs in respect of Lot 112 and Lot 131 on 27 April 2022, identifying that the current HMA had expired on 16 April 2022 and stating therefore it is entitled to possession of its lots upon giving one month’s notice in accordance with the original RMA.[2] Vasco does not accept that the current HMA has expired. Nor does Vasco accept that the evergreen RMAs that APIC executed with respect to Lot 112 and Lot 131 are invalid.
[2]The letter and subsequent email makes clear that 16 April 2022 was a date identified by Vasco and that APIC contended the end date was 28 June 2022, see ‘Boerkamp email – 27 April 2022’ which forms part of exhibit bundle LR-1 in the Affidavit of Lyn Ridley sworn 29 September 2022, exhibit page 760; see also ‘Boerkamp email – 1 May 2022’ which forms part of exhibit bundle LR-1 in the Affidavit of Lyn Ridley sworn 29 September 2022, exhibit pages 761–3.
Two proceedings are on foot. In the other proceeding, commenced by writ and statement of claim filed on 1 August 2022, APIC seeks possession of the two lots owned by it.[3] Vasco contends that that the current HMA does not end until 2026 and members cannot withdraw from the scheme while the current HMA is in operation. Vasco also contends that the evergreen RMAs are within the power of the responsible entity and do not permit termination by members, even upon expiry of the relevant HMA. Vasco has commenced this proceeding which, by its amended originating motion filed 22 November 2022, seeks declaratory and other relief.
[3]The second proceeding is S ECI 2022 02906, Supreme Court of Victoria.
The two questions to be determined as preliminary questions in the Vasco amended originating motion are:
(a)What date is the ‘Opening Date’ as that term is defined by the current HMA, and consequentially on what date does the current HMA expire?
(b)Did the responsible entity have power to introduce the evergreen RMAs?
The plaintiff relies on the affidavit of Lyn Ridley (Ridley) sworn 29 September 2022 (the Ridley affidavit) and the affidavit of Selina Nutley affirmed 1 December 2022 (the Nutley affidavit),[4] together with the documents exhibited. The first defendant’s objections to the admissibility of parts of the Ridley affidavit were not pressed at hearing. The first defendant relies on the affidavit of Wilhelmus Boerkamp sworn 1 June 2023 and the documents exhibited. Additional documents were tendered by both parties.[5] I am grateful also for the aide memoire provided by counsel for the plaintiff as to the chronology of the changes in entities managing the scheme over time.

B Documents of the scheme

[4]Plaintiff, ‘Affidavit of Selina Kate Nutley’ affirmed 1 December 2022 in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, exhibit page 493, which forms tendered exhibit 2 (‘Affidavit of Selina Kate Nutley affirmed 1 December 2022).

[5]‘Scheme Constitution dated 13 August 1999’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, which forms tendered exhibit 3 (‘Scheme Constitution’); ‘Notice of Renewal from Mirvac to Austpac – 25 September 2011’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, which forms part of tendered exhibit 4 (‘First Notice of Renewal’); ‘Notice of Renewal from Yarra Valley Lodge to Austpac – 23 February 2015’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457 which forms part of tendered exhibit 4 (‘Second Notice of Renewal’); ‘Lot Lease – 11 October 1999’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, which forms tendered exhibit B (‘Lot Lease’); ‘Contract of sale for Room 131 - dated 19 January 2011’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, which forms part of tendered exhibit C (‘Room 131 Contract of Sale’); ‘ASIC doc 018255892 - Financial Report - Registered Scheme - 1 October 2002’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, which forms part of tendered exhibit D; ‘ASIC doc 019850100 - Financial Report Financial Report – Registered Scheme - 29 October 2003’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, which forms part of tendered exhibit D; ‘ASIC doc 021283306 - Financial Report Financial Report - Registered Scheme - 18 April 2005’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, which forms part of tendered exhibit D; ‘ASIC doc 022390535 - Financial Report Financial Report - Registered Scheme - 30 September 2005’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, which forms part of tendered exhibit D; ‘Letter from YVG Management Limited to Room owner – part - 30 August 2002’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, which forms tendered exhibit E; ‘Letter from Vasco Trustees to Room Owners - dated October 2020’ in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, which forms part of tendered exhibit G. Note tendered exhibit F and the first two documents in tendered exhibit G were already exhibited to the First Defendant, ‘Affidavit of Wilhelmus Boerkamp’ sworn 1 June 2023 in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, exhibit pages 59, 64 and 126, which forms tendered exhibit A (‘Affidavit of Wilhelmus Boerkamp sworn 1 June 2023’).

B.1 Scheme constitution

Clause 1 of the scheme constitution defines terms used in the scheme constitution. An investor in the scheme holds a ‘holder’s interest’, which is:
an interest under s 9 of the Corporations Law[6] and includes the Holder’s right and title in the particular Holder’s Lot and Lease, the Hotel Management Agreement and Plan which constitutes the Holder’s Business and Holder’s Lot and which shall be either an A Class Interest or a B Class Interest.
[6]References to ‘Corporations Law’ refer to the Corporations Act 2001 (Cth)(‘Corporations Act’).
A ‘holder’s business’ is defined as the business of hotel accommodation conducted by the responsible entity on behalf of the holder consequent upon the holder subscribing for and holding a holder’s interest. ‘A Class’ and ‘B Class’ interests reflect the different investments in a room or a suite respectively.
Scheme is defined in the scheme constitution as:
the investment in and the carrying on of a hotel accommodation business by or on behalf of individual Holders pursuant to valid and current Contracts of Sale, Leases, Hotel Management Agreements and Plans as applicable at the relevant time and includes the assets and liabilities relating thereto, and also means the aggregation of each Holder’s Business established pursuant to this Deed.
Clause 4 of the scheme constitution sets out that the scheme is established when registered pursuant to Part 5C.1 of the Corporations Law and continues in operation until the earlier of:
a)the date by which the Scheme is terminated in accordance with the provisions of this Deed or the Corporations Law; or
b)the Scheme is wound up.
Clause 23 deals with termination of the scheme. Clause 23.1 provides that the responsible entity at any time by written notice to the holders may terminate the scheme. Clause 23.2, which is set out in full at paragraph [27] of these reasons, sets out six events which will cause a winding up of the scheme, including under sub-cl (b) where ‘the Scheme comes to an end of its term in accordance with the provisions of this Deed’.[7] Holders do not have a right to withdraw from the scheme,[8] although they may transfer their holder’s interest in such a manner as the responsible entity prescribes, with any transfer taking effect upon entry into the register of holders maintained by the responsible entity.[9]
[7]Scheme Constitution cl 23.2(b).
[8]Scheme Constitution cl 10.
[9]Scheme Constitution cl 20.
Clause 9 of the scheme constitution details holders’ interests and in particular the conduct of the holder’s business as part of that interest. Each holder appoints the responsible entity to manage their holder’s business on their behalf.
‘Scheme property’ is defined in cl 1 as:
any property held by the Responsible Entity for or on behalf of Holders including:
a)Net Income (if any) of the Scheme;
b)the Trust Account;
c) the FF&E Reserve.
It is common ground that scheme property includes the former leasehold interest and RMA licence to occupy that is granted to the responsible entity.
The scheme constitution defines ‘Transaction Documents’ as meaning:
(a)the Contract of Sale, which is defined as the contract of sale for each Lot;[10]
(b)the Lease;[11]
(c)the Plan;[12] and
(d)the Membership.[13]
Transaction documents in the scheme constitution are relevant to the delivery and acceptance of applications for a holder’s interest. As set out in cl 8 of the scheme constitution, a prospective holder applies to the scheme by executing an application form which is delivered to the responsible entity together with all moneys payable and the transaction documents. The responsible entity then must accept or decline the application. On acceptance of the application, the transaction documents become binding as between the parties. If the minimum subscription for the scheme is not reached, holders are released from the terms of the scheme constitution and the transaction documents.[14]
[10]Defined in cl 1 of the Scheme Constitution as the contract of sale relating to each lot.
[11]Defined in cl 1 of the Scheme Constitution as the lease between a holder and the responsible entity.
[12]Defined in cl 1 of the Scheme Constitution as the body corporate relating to the plan of subdivision.
[13]Defined in cl 1 of the Scheme Constitution as the membership of the private members golf club known as the ‘Heritage Golf Country Club’.
[14]Scheme Constitution cls 5.4 and 5.5.
HMA and lot lease are defined terms in the scheme constitution. A ‘HMA’ is defined as:
the agreement entered into by the Hotel Manager and the Responsible Entity, for and on behalf of all Holders, in substantially the same form as set out in Schedule 2.
Similarly ’lease’ is defined as:
a lease entered into between a Holder and the Responsible Entity under which the Responsible Entity leases from a Holder the Holder's Lot in substantially the same form as set out in Schedule 3 in respect of part of the Property.
Clause 23 of the scheme constitution sets out the process of terminating the scheme, stating:
23.1 Termination on Notice
The Responsible Entity at any time by written notice to the Holders may terminate the Scheme with effect as at the time specified in the notice.
23.2 Events which cause a winding up
The Responsible Entity must wind up the Scheme or cause the Scheme to be wound up in any one of the following circumstances:
(a)the Responsible Entity terminates the Scheme in accordance with clause 23.1;
(b)the Scheme comes to an end of its term in accordance with the provisions of this Deed;
(c)the Scheme is without a Responsible Entity;
(d)the Responsible Entity uses the mechanism provided for in section 60lNC of the Corporations Law;
(e)a court orders the Scheme to be wound up pursuant to section 601ND of the Corporations Law; or
(f)any of the circumstances set out in section 601NE apply such that the Responsible Entity is required to wind up the Scheme.

Clause 23.3 deals then with the process of winding up.
Despite cl 23.2(b), the scheme constitution provides no other term that brings the scheme to an end. It ends either by a unilateral act of termination by the responsible entity or because one of the specified circumstances requiring winding up of the scheme eventuates. While the scheme does not end on the expiry or termination of the HMA, the constitution does not explicitly provide for the powers of the responsible entity in relation to a further HMA.

B.2 Scheme prospectus

YVG invited investment in the scheme by a prospectus dated 29 September 1999 (the prospectus). That document identified a holder’s interest which comprised:
·freehold title to a room or suite in the Sebel Heritage Lodge which is subject to a long term lease and management agreement;
·fixtures, furnishing and equipment located in the room or suite;
·Lodge Membership (or Memberships) of the Heritage Golf & Country Club with no obligation to pay annual dues or green fees;
·a pro rata interest in:
(i)the Hotel’s accommodation business;
(ii)the common property of the Hotel (including the fixtures, furnishings and equipment located in the common property); and
(iii)the funds reserved to renew the fixtures, furnishings and equipment located in the rooms and suites of the Hotel.[15]
[15]Prospectus, exhibit page 387.
The prospectus described the investment as long term with no redemption or buyback facility. On acquiring an interest, investors will be bound by 5 documents, including a lot lease in favour of the responsible entity and the original HMA between the hotel manager and responsible entity for and on behalf of members. It states that the original HMA and lot leases are both for a term of 10 years and may be extended for two further periods of five years each.
Under a heading scheme documents the prospectus reads:
The expiry or termination of either or both of the Lot Leases and Hotel Management Agreement is likely to have an impact on an investment in an Interest. If the Lot Leases are not extended at the expiry of their term, new management arrangements will need to be made.[16]
[16]Prospectus, exhibit page 419.

B.3 Hotel Management Agreement

The original HMA was entered into between YVG and Mirvac in October 1999 for Mirvac to operate the Hotel.[17] I infer that this, or something substantially similar, is sch 2 of the scheme constitution. According to that document, Mirvac agreed to acquire the management lot and also agreed to operate the Hotel.[18]
[17]Affidavit of Lyn Ridley sworn 29 September 2022 [6(a)(i)]; See ‘HMA – 28 June 2002’ which forms part of exhibit bundle LR-1 to Affidavit of Lyn Ridley sworn 29 September 2022, exhibit pages 12–120 (‘HMA dated 28 June 2002’).
[18]A copy of the original HMA is found at sch 2 of the ‘Original RMA’ which forms part of exhibit bundle LR-1 to Affidavit of Lyn Ridley sworn 29 September 2022, exhibit pages 254–385 (‘Original RMA’) at exhibit pages 296–367 (‘Original HMA’).
The original HMA was replaced by the current HMA on 28 June 2002. The current HMA updated the parties to the agreement and replaced lots leases with RMAs. Recital G of the current HMA states that it is intended to replace the original HMA in its entirety.[19] As such, references to the HMA from this point onwards refer to the current HMA unless otherwise stated. The recitals to the HMA set out the nature of the agreement. They identify the Developer, that interests have been issued to investors[20] and the role of YVG as ‘responsible for managing the development of the Hotel and the sale of interests to owners’ and managing owners’ interests in the Hotel. The recitals also state that YVG’s management of the owners’ interests will be facilitated pursuant to the RMAs.[21] Mirvac agrees to operate and manage the Hotel.[22] Glenbelle, who is to acquire the management lot, agrees that the lots, including the management lot, will be managed collectively as the Hotel.[23]
[19]HMA dated 28 June 2002, recital G.
[20]HMA dated 28 June 2002, recital B.
[21]HMA dated 28 June 2002, recital C.
[22]HMA dated 28 June 2002, recital E.
[23]HMA dated 28 June 2002, recital F.
The HMA has a number of defined terms. Importantly ‘Opening Date’ is defined in cl 1 as:
‘Opening Date’ means the later of:
(a) the date of satisfaction of all of the following conditions:
(i) YVG Golf [the Developer] having complied with all of its obligations set out in schedule 2;
(ii) completion of the Golf Course to a standard ready for playing golf and commencement of operation of the Golf Course;
(iii) completion of construction and fitout of the Clubhouse; and
(b) the date the Hotel is ready for occupation and use as a hotel as agreed by Mirvac and YVG.
The original HMA had also defined Opening Date in these terms but with two additions. It had a fourth condition under sub-cl (a) which was the lodgement and registration of the prospectus with ASIC and the minimum number of investors having applied for the purchase of interests. It also had a third defined event with sub-cl (c) being the date of settlement of the contract of sale, a reference to the sale of the management lot to Mirvac. I infer they were removed because both conditions had been met before 28 June 2002.
For the purpose of para (i) in sub-cl (a) of the definition of Opening Date in the HMA, sch 2 sets out the ‘Pre-Opening Date Obligations’ of the Developer (the obligations). It states:
Prior to the Opening Date, [the Developer] must:
(a) arrange and procure registration of the Plan relating to the Property;
(b) complete the design and construction of the Hotel to a high standard and furnishing and fitout of the Hotel to a 4.5 star standard equivalent to the Chatsworth Plaza as at the date of this agreement;
(c) procure completion and execution of all documents required to give effect to the Transaction Documents including:
(i)contracts of sale in respect of the sale of rooms and suites of the Hotel to the Owners;
(ii)the Room Management Agreements;
(iii)arrangements with the Golf Club; and
(iv)execution of a Room Management Agreement in relation to each room and suite of the Hotel which remains unsold prior to the date of registration of the Plan.
(f) complete construction of the Golf Course and the Clubhouse;
(g) execute all Transaction Documents to which it is a party; and
(h) procure any mortgagee of the Property to enter into a deed of consent in respect of this agreement and other Transaction Documents to which Mirvac is a party containing such terms as Mirvac, acting reasonably, may require.[24]
[24]The numbering reflects that of the schedule which has no paragraph (d) or (e).
The original HMA contained sch 2 in the same terms but contained two additional obligations relating to the prospectus, paras (d) and (e), which are removed from the HMA as no longer relevant. Upon removal the numbering has remained unchanged. In the original HMA the obligation in para (c) contains 5 sub-paras using the language of lot leases instead of RMAs. The sub-paras of (c) in the original HMA read:
(i)contracts of sale in respect of the sale of rooms and suites of the Hotel to the Owners;
(ii)the Contract of Sale;
(iii)the Lot Leases;
(iv)arrangements with the Golf Club;
(v)execution of a Lot Lease in relation to each room and suite of the Hotel which remains unsold prior to the date of registration of the Plan.
The contract of sale referred to in sub-para (ii) was defined as the contract of sale of the management lot by the Developer to Mirvac.
Transaction documents are defined differently in the HMA than in the scheme constitution. For the parties to the HMA, ‘Transaction Documents’ are defined in cl 1 as meaning:
(a) this Agreement;
(b) the Room Management Agreements; and
(c) the contracts of sale of the rooms and suites of the Hotel.
The HMA also defines the ‘Commencing Date’ as meaning 16 April 2002. It is common ground that the Hotel occupancy permit was dated 15 April 2002. Mirvac advised later that the Hotel formally opened on 16 April 2002.[25]
[25]‘Letter from Vasco Trustees to Room Owners’ which forms part of exhibit bundle WB-1 in the Affidavit of Wilhelmus Boerkamp sworn 1 June 2023, exhibit page 55.
A number of terms of the HMA are also relevant.
Clause 2.3 provides:
Initial Term
Subject to earlier termination in accordance with its terms, this Agreement will commence on the Opening Date and terminate on the tenth anniversary of the Opening Date.
Clause 2.4 of the HMA gives Mirvac the option to extend the term of the agreement by five years on two occasions by giving notice to the other parties at least six months prior to the expiry of the HMA. Mirvac did give such notice, by letter dated 25 September 2011.[26] A second extension was notified by YVL as hotel manager by letter dated 23 February 2015.[27] The HMA has therefore been extended to its maximum period of 20 years.
[26]First Notice of Renewal.
[27]Second Notice of Renewal (the Court notes that, for the purpose of the preliminary questions, no issue was taken by the parties at hearing with the extension being requested by YVL as the then hotel manager rather than Mirvac).
Clause 3 of the HMA deals with ‘Opening Matters’. In this clause the distinction between Commencing Date and Opening Date can be seen in a practical way. Clause 3.1 sets out Mirvac’s agreement to undertake certain ‘Pre-Opening Activities’ before the Commencing Date and cl 3.2 sets out YVG and Glenbelle’s obligation to procure access to the Hotel for at least two months prior to the Commencing Date so that Mirvac can undertake those activities which include staff training, publicity surrounding the opening and the provision of advice relating to construction and fit-out of the Hotel. Clauses 3.3 through 3.5 provides for a pre-opening budget to be prepared and for an estimate and payment of pre-opening expenses for the pre- opening period. Clause 3.7 deals with the responsibility for maintaining public liability and property insurance until the Opening Date. Clause 3.8 acknowledges compliance by Mirvac of its obligations prior to the Commencing Date under cls 3.1 and 3.3. Clause 3.6 states:
Estimate of Pre-Opening Expenses
As at the date of this Agreement:
(a) the total amount of Pre-Opening Expenses spent is $500,000; and
(b) YVG estimates that the Opening Date will be 10 June 2002.
YVG agrees to further advise Mirvac of any different date for the Opening Date.
Clause 3.6 of the Original HMA had provided:
As at the date of agreement the total amount of Pre-Opening Expenses is estimated to be $500,000. YVG agrees to advise Mirvac of the estimated Opening Date at least six months prior to the actual Opening Date and will every month thereafter further advise Mirvac of any different date for the Opening Date.
There is nothing to suggest that after signing the HMA, YVG advised Mirvac of any different or particular date for the Opening Date other than that estimated by sub-cl 3.6 (b) of the HMA.
‘Room Management Agreements’ is a defined term in the HMA. It is defined in cl 1 as meaning:
each of the agreements of that name between an Owner, YVG Golf [the Developer] and YVG dated on or about the date of this Agreement, under which YVG licences from the Owners the property within the boundary of each Bedroom and Suite and their undivided interest in the Common Areas.
Owners are defined in cl 1 of the HMA as ‘owners of the Interests’ and ‘Interests’ in turn are defined as:
the indivisible interests to be acquired by the Owners, each comprising:
(a) an individual room or suite in the Hotel;
(b) an undivided share of the Common Areas; and
(c) attaching playing rights at the Golf Club.
Clause 12 of the HMA deals with management fees and performance targets. Clause 12.5 provides an acknowledgment that under the terms of the RMAs the responsible entity, YVG, has agreed to pay monthly distributions to the owners for each of the two guarantee periods. The guarantee periods are also a defined term, with the first being the period commencing on the Opening Date and ending 12 months later. The second guarantee period commences on the anniversary of the Opening Date and ends 12 months later.

B.4 Lot Leases and Room Management Agreements

The scheme constitution contemplated that members would enter into a lot lease and in October 1999 the Developer and YVG entered into individual lot leases in relation to the lots. Those leases state that lots offered to investors in the scheme will be subject to an identical lease and owners will become landlord of the lot that they have acquired. Lot leases were for a term that began on a date determined by the Opening Date as defined in the HMA and expired 10 years later unless the responsible entity wished to lease the lot for a further term. The lease obliged the landlord investor to grant one or two five-year extensions at the tenant’s request. In 2002, when the parties to the HMA changed from lot leases to RMAs, the RMAs followed a similar structure, licencing the room to the responsible entity for a period of 10 years beginning on the Opening Date as defined by the HMA and requiring the two five-year extensions be granted if requested by the responsible entity. The encumbrance of a lot lease and later a RMA was a special condition of all contracts of sale for lots. Vasco’s records disclose two versions of the RMAs: the original RMAs and evergreen RMAs.[28]
[28]Affidavit of Lyn Ridley sworn 29 September 2022, 3 [13].

B.4.1 Original RMA

The original RMA is a tripartite agreement between the owner of a room, the Developer and YVG as the responsible entity. Many of the original RMAs are dated ‘May 2002’, others are undated or bear specific other dates. The original RMAs contain recitals that refer to a lot lease for the lot previously entered into between YVG and the Developer on the understanding that a future purchaser would assume the Developer’s obligations under the lease.[29] The original RMA says the parties no longer wish the owner to assume obligations under the lot lease and instead agree to terminate the lot lease, amend the contract of sale and grant the responsible entity a licence to occupy the lot for the purpose of facilitating the scheme.[30]
[29]Original RMA, recital E.
[30]Original RMA, recitals D and H.
By cl 5 of the original RMA, the owner grants the responsible entity a licence to occupy the lot. Clause 6 provides for an initial term of 10 years and grants the responsible entity two options to extend for a five-year period on each. The 10-year term begins on the ‘Commencement Date’, which is defined as the Opening Date under the HMA.
Clause 2.1 of the original RMA states that the agreement ‘has no force or effect unless and until the Contract of Sale is completed’. The date of completion is defined as the effective date and is the date upon which the original RMA replaces the lot lease, and the consequential amendments to the contract of sale are made. On the effective date the owner grants the responsible entity a licence to occupy the lot and the right to grant the hotel manager a sub-licence to occupy in order to manage the Hotel in accordance with the HMA.
A sample RMA, being the document for Lot 6, is included in the Ridley affidavit. The undated cover page lists the Developer, YVG and the owner (Wallace). Next is a table of contents. This table and subsequent pages are dated ‘29/05/02’ by a footer. The following page, headed ‘2’, dates the document ‘DEED Dated May 2002’ and states it is between the Developer, YVG and owner (Thackeray Corporation Pty Ltd). The document is executed as an agreement by the Developer and YVG. The execution page is not dated and there is no place on that page for the signature or any other identification of the owner. Nowhere is the document signed by an owner. The document is not on the registry system of the responsible entity.[31]
[31]‘Original Excel Spreadsheet’ which forms part of exhibit bundle LR-1 to Affidavit of Lyn Ridley sworn 29 September 2022, exhibit page 510.
The accompanying extract of the contract of sale for Lot 6 identifies ‘Ray Wallace or nominee’ as purchaser.[32] That contract schedule included as an encumbrance the covenants of the owner as set out in the original RMA, the rights of the hotel manager under the HMA and the scheme constitution.[33] The signatures of vendor and purchaser on the extracted first page are undated. The last page of the extract is a statement signed by the vendor on 9 October 2003 that the purchaser acknowledges on 26 March 2004, being given before signing the contract.[34] It must follow that if the purchaser signed the RMA, it did so well after May 2002.
[32]‘Contract of Sale – L6’ which forms part of exhibit bundle SKN-1 to Affidavit of Selina Kate Nutley affirmed 1 December 2022, exhibit page 493–7 (‘Lot 6 Contract of Sale’).
[33]Lot 6 Contract of Sale, exhibit page 495.
[34]Lot 6 Contract of Sale, exhibit page 496.
Of the tripartite original RMAs, Ridley deposes to Vasco holding 45 that contain the date ‘May 2002’ on the page following the contents table. Others are described as undated and for other rooms there is no record of an original RMA. A small number have other dates recorded, including dates later than the HMA.

B.4.2 Evergreen RMA

From about 2016 some owners, including APIC, were asked by the responsible entity to enter into evergreen RMAs. The parties to an evergreen RMA are the relevant owner and the ‘responsible entity for the Scheme from time to time’.[35] The recitals note that the responsible entity of the scheme in 2002 entered into the HMA with the hotel manager for and on behalf of the owners.
[35]‘Evergreen RMA – 16 November 2016’ which forms part of exhibit bundle LR-1 to Affidavit of Lyn Ridley sworn 29 September 2022, exhibit pages 468–505 (‘Evergreen RMA’).
‘Hotel Management Agreement’ is defined in cl 1 of the evergreen RMA as it was in the original RMA:
an Agreement between the Responsible Entity and the Hotel Manager (a copy of which is attached as Schedule 4) as amended from time to time, or any replacement agreement between the Responsible Entity, the Management Lot Proprietor and the Hotel Manager relating to the management of the Hotel.[36]
[36]Although sch 4 is not attached in the exhibited RMA, I have proceeded on the basis that it is the HMA dated 28 June 2002.
‘Term’ is defined in cl 1 of the evergreen RMA to mean the term calculated pursuant to cl 3, which in turn states:
TERM
The term of the agreement is from the date of execution until the Scheme is wound up or upon termination by the Responsible Entity in accordance with this Agreement or the constitution of the Scheme.
The evergreen RMA, like the original RMA, places a restriction on an owner’s right to terminate a RMA by cl 12.1. This states that an owner is not entitled to terminate at any time while the HMA remains in force.[37] The document is silent as to an owner’s right to terminate after the HMA term ends. By contrast, the original RMAs provide for termination by either party on one month’s notice once the HMA comes to an end.
[37]Evergreen RMA cl 12.1.

B.5 Contracts of Sale

There are two versions of the contracts of sale for lots. The first is for contracts entered into before the HMA and the second is used for contracts after that time. The contract for Lot 1 dated 6 November 1999 is an illustration of the first kind. An acknowledgement is attached in which the purchaser acknowledges and agrees that:
(a)the contract of sale with the Developer is the contract of sale referred to in the prospectus;
(b)the purchaser has read in full the prospectus;
(c)the purchaser has received, read in full and agrees to be bound as purchaser by the contract of sale; and
(d)that these acknowledgments are made in favour of the Developer and have been relied on by the Developer in entering the contract and by YVG in considering the purchaser’s application under the prospectus.

The pre-HMA contract of sale has no fixed settlement date. A schedule lists encumbrances, including restrictions in the plan of subdivision, body corporate rules, the management lease and the rights of Mirvac under the original HMA.[38]
[38]‘Pre-HMA contract of sale’ which forms part of exhibit bundle LR-1 to Affidavit of Lyn Ridley sworn 29 September 2022, exhibit page 657.
The post-HMA contract of sale is illustrated by the contract of sale for Lot 15 signed by the purchaser on 12 December 2003.[39] There is no acknowledgement but the documents concerning title are attached, including the plan of subdivision and body corporate rules. It provides for payment of the balance in 60 days from the date of the sale. Encumbrances include the RMA, the rights of the hotel manager under the HMA and the provisions of the scheme constitution.[40]
[39]‘Post-HMA contract of sale’ which forms part of exhibit bundle LR-1 to Affidavit of Lyn Ridley sworn 29 September 2022, exhibit page 661.
[40]‘Post-HMA contract of sale’ which forms part of exhibit bundle LR-1 to Affidavit of Lyn Ridley sworn 29 September 2022, exhibit page 662.
Both the pre-HMA and post-HMA contracts of sale have special conditions attached.
The Nutley affidavit exhibits the historic title searches for each lot and extracts of the contracts of sale from the Developer to the initial purchasers. From this material, the Nutley affidavit also sets out a summary table identifying for each lot the date of sale from the Developer, the date of the first transfer of title and the date of the first and latest RMA where known.
The term of original RMAs begins from the Opening Date as defined in the HMA, meaning their term aligns with the HMA. However their effective date, being the time at which they replace the lot lease, is the date of settlement of each contract of sale. Therefore, the original RMAs have force and effect only on completion of the contract of sale with the purchaser.[41]
[41]Original RMA cl 2.1.
Ridley also deposes to a number of matters arising from her review of the original source documents. First, there are four rooms for which Vasco does not have the initial contract of sale from the Developer. Title searches show that title transferred from the Developer on 2 August 2002, 8 August 2002, 28 August 2002 and 11 February 2003 in respect of each of the four rooms. Second, Lot 101 has a contract of sale (contract of sale 101) dated 14 February 2000 but transfer of title only occurred on 8 May 2006. Documentation indicates that the purchase settled pursuant to a contract of sale dated 24 March 2006 with a person other than that on the 14 February 2000 contract.[42] Third, Lot 126 appears from the summary table to have been conveyed from the Developer on 19 July 2017. However, an incomplete contract of sale dated 14 September 2004 and an original RMA signed by the purchaser on 24 June 2005 leads Ridley to conclude that 19 July 2017 is an error. With these three explanations, Ridley concludes that the settlement of Lot 101 on 8 May 2006 is the last in time of the Developer’s contracts of sale for the 102 lots.
[42]Affidavit of Lyn Ridley sworn 29 September 2022, 6 [33].

C APIC’s interests

APIC owns two rooms at the Hotel. Lot 131 was purchased on or around 19 January 2011 from vendor Anne-Maree Mooney (Mooney). The person who initially purchased the lot from the Developer was John Mooney. The contract of sale for Lot 131 dated 19 January 2011 (contract of sale 131) contains clauses acknowledging that APIC as the purchaser is bound by the scheme constitution and acquires the property subject to the RMA. The RMA signed by Mooney is annexure B to contract of sale 131. This is a document dated May 2002 and is the tripartite agreement in the form discussed above at paragraph [50].[43] The signatories and witness for YVG and the Developer appear identical to those on the sample original RMA. The RMA has been executed by Mooney on the same page as the other signatories without date.
[43]‘Special conditions’ which forms part of exhibit bundle LR-1 to Affidavit of Lyn Ridley sworn 29 September 2022, exhibit page 634.
APIC subsequently signed an evergreen RMA for Lot 131. The evergreen RMA for Lot 131 is undated but has a document footer dated 7 January 2020.[44]
[44]Room 131 Contract of Sale, annexure B.
APIC purchased Lot 112 by a contract of sale dated 6 December 2019 (contract of sale 112). Settlement was due on 4 February 2020. Clause 3.1 of contract of sale 112’s special conditions further stated that APIC’s purchase was subject to both the RMA for Lot 112 and the HMA, but it is unclear what RMA came into force at the time of settlement. APIC did sign an evergreen RMA at some time which, like the evergreen RMA for Lot 131, is undated but has a document footer bearing the date 7 January 2020.[45]
[45]‘Evergreen RMA – Lot 112’ which forms part of exhibit bundle LR-1 to Affidavit of Lyn Ridley sworn 29 September 2022, exhibit page 759.
It is not possible on the evidence to determine the date of execution and therefore the commencement of the term of APIC’s evergreen RMAs in accordance with cl 3 of that agreement.

D Principles

The principles to apply in the construction of a commercial agreement are not in dispute. In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd,[46] French CJ, Nettle and Gordon JJ said:
The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
…
Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements or actions reflecting their actual intentions and expectations.[47]
[46](2015) 256 CLR 104 (‘Mount Bruce Mining’).
[47]Ibid 116–7 [46]–[50] (footnotes omitted).
Construction of a commercial contract is also approached on the basis that the parties intended a commercial result and so a construction that identifies the commercial purpose or objects is preferred.[48]
[48]Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640, 656–7 [35] citing Re Golden Key Ltd [2009] EWCA Civ 636 at [28] and relied on in Mount Bruce Mining (n 46) at 117 [51].
The presumption against surplusage is also relevant to the question of construction. As stated by Croft J in Shepparton Projects Pty Ltd v Cave Investments PtyLtd,[49] a construction which gives each and every part of a written contract work to do is preferable to a construction which makes redundant provisions or parts of provisions.[50]
[49][2010] VSC 504.
[50]Ibid [42].
Although there is no dispute as to the principles, each party contends that the language of the critical paragraphs in sch 2 of the HMA is clear and unambiguous. But each contends a clear statement with very different effect.
The responsibilities and powers of responsible entities are set out in Chapter 5C, Part 5C.2 of the Corporations Act 2001 (Cth) (the Corporations Act). A responsible entity of a registered scheme must hold an Australian financial services licence and comply with the conditions of such a licence. Section 601FC(1) of the Corporations Act sets out the duties of such a body confirming that it holds scheme property on trust for scheme members.[51] Section 601FC(1)(d) requires a responsible entity to treat members who hold interests of the same class equally and members who hold interests of different classes fairly.

E Submissions

[51]Corporations Act s 601FC(2).

E.1 The Opening Date

Critically, the Opening Date as defined in cl 1 of the HMA and as adopted in the original RMAs, is the later of two options. Both parties accept that the Opening Date falls to be determined by sub-para (a)(i) of its definition in cl 1 of the HMA as set out above at paragraph [35], namely satisfaction of the obligations by the Developer.
The plaintiff contends that the date on which the Developer met the last of its obligations was 8 May 2006. The first defendant contends that 10 June 2002 is the relevant date. The argument focuses on the construction of the Developer’s obligations under paras (c) and (g) of sch 2, and, by written submissions received on 12 July 2024, also on the construction of para (h) of that schedule. For ease, those contentious provisions are repeated here:
(c) procure completion and execution of all documents required to give effect to the Transaction Documents including:
(i)contracts of sale in respect of the sale of rooms and suites of the Hotel to the Owners;
(ii)Room Management Agreements;
(iii)arrangements with the Golf Club; and
(iv)execution of an Room Management Agreement in relation to each room and suite of the Hotel which remains unsold prior to the date of registration of the Plan;
…
(g) execute all Transaction Documents to which it is a party;
(h) procure any mortgagee of the Property to enter into a deed of consent in respect of this agreement and any other Transaction Documents to which Mirvac is a party containing such terms as Mirvac, acting reasonably, may require.
Vasco accepts that the Hotel commenced operation in 2002, at which time a number of lots remained unsold by the Developer. It submits that there is a deliberate distinction between the Commencing Date and the Opening Date with the former having no bearing on the construction of the latter. Vasco submits that the language of an estimate in cl 3.6 of the HMA falls well short of an agreement of Mirvac and YVG as to the Opening Date. In this context cl 3.6 is no more than an estimate by one party of when, after the Commencing Date, the six obligations set out in sch 2 of the HMA under the heading ‘pre-opening day obligations’ might be satisfied by the Developer. Vasco submits that even if 10 June 2002 was a date agreed by Mirvac and YVG, it is a date that is in fact earlier than the date of compliance by the Developer with its obligations on a proper construction of the definition.
Critically, Vasco submits that the Developer’s obligations under para (c) required the Developer to ‘procure completion and execution of all documents required to give effect to the Transaction Documents’ which include the contracts of sale for each lot. Vasco submits that ‘to complete’, means to settle the contracts for sale of all lots. Contract of sale 101 was the last contract completed when title transferred on 8 May 2006. Vasco submits that this is the date on which sub-para (c)(i) of the obligations was satisfied.
In other words, Vasco submits that the contracts of sale, as one category of transaction documents, are not given effect until title is transferred. Vasco points to the anterior requirement that the Developer execute the contracts of sale and says that insofar as the obligation is to procure execution of documents, this cannot occur until details of those contracts are known, which requires knowledge of the parties, the sale price and the settlement date. Until those details are known, all that could be achieved would be a generic or pro forma contract which is not the intention of the obligations. Vasco submits that the literal words opening para (c) of the obligations accords with a commercial construction, with the relevant inquiry being the time at which the lots all fall under the control of a holder.
Vasco also submits that a commercial construction favours an interpretation that all investors obtain the benefit of at least a 20-year investment consistent with the term of the HMA and RMAs. It submits that APIC’s construction would mean that all investors entering into contracts of sale and RMAs after June 2002 would have a lesser investment period in the scheme than the intended 20-year term. Vasco submits that this is the reason that the parties to the HMA agreed that the Opening Date would be the later date not the earlier.
To provide the evidentiary support to identify the date of settlement of contract of sale 101, as detailed above, the Nutley affidavit sets out the date of transfer of each lot from the Developer to an owner. The additional submissions filed 12 July 2024 set out in sample form illustrations to demonstrate that a mortgage was discharged on transfer of each title from the Developer. Vasco now submits that the mortgages were discharged progressively upon settlement of the sale of each lot. Save for one discharge recorded in 2017 which Vasco submits is erroneous, Vasco contends that the discharge of the mortgage over Lot 101 on 8 May 2006 was the event that satisfied the para (h) of the obligations.
As to the lots for which no original RMA can be located, Vasco submits that the Court can infer that the RMAs were entered into by owners at or about the time they entered into contracts of sale. RMAs were annexed to contracts of sale and, once the HMA was signed, contracts of sale were conditional upon a purchaser entering into a RMA. RMAs were critical to both the purpose of the scheme and the ability of the owner to derive income from the scheme. Therefore, where there is no record an inference should be drawn that the RMAs were entered into.
Finally, as to the requirement that the Developer enter into RMAs for lots that remain unsold at registration of the plan of subdivision on 23 May 2002, by sub-para (c)(iv) of the obligations, Vasco submits this obligation is simply directed at the execution of a RMA that will in due course supersede the lot licence.
APIC submits that the Opening Date is a date before 28 June 2002, most likely 10 June 2002. This date accords with the estimate in sub-cl 3.6(b) of the HMA itself, which was executed on 28 June 2002. In particular, APIC submits that recording the estimate provided by one party to the other in cl 3.6 of the HMA permits an inference that the parties were satisfied that all three conditions contained in the definition of Opening Date in cl 1 of the HMA, and therefore the requirements necessary to bring about the later date, had been met by 10 June 2002. This inference is supported by the change in cl 3.6 of the HMA from the corresponding provision in the original HMA, which required an estimated ‘Opening Date’ be advised (and revised monthly) over a six month period.
Contrary to Vasco’s submission, APIC submits that ‘completion and execution’ in para (c) of the obligations is not completion of the transactions contemplated by the transaction documents, but completion of the documents themselves. APIC submits that ‘completion and execution’ is the preparation and execution of those documents by the Developer so that they may be given effect when an investor’s application is received and then accepted. APIC contends that while there is overlap, the transaction documents and the documents required to give effect to them is not co-extensive.
APIC contends that this construction is consistent with the terms of the HMA itself, as well as the original HMA and the prospectus, all of which contemplated that lots might be sold after the Opening Date.[52] The scheme constitution states that the scheme commences upon accepting a minimum of 66 interests in lots within a finite time. It necessarily follows that the scheme is capable of operating notwithstanding lots remain unsold.
[52]‘Hotel Opening Date’ and ‘Opening Date’ are used interchangeably in the Prospectus without definition.
When looking at para (c) of the obligations as a whole, a reasonable businessperson would understand that the Developer may well have rooms to sell after the HMA takes effect, but that the Developer is obliged to complete documents as vendor, including executing contracts of sale and RMAs in respect of all lots whether or not they have yet been sold. APIC submits that Vasco’s construction is contradicted by the express words of cl 3.6 and paras (c) and (g) of the obligations.

E.2 Evergreen RMAs

The defendant challenges the validity of the evergreen RMAs. It contends that Vasco’s role is to perform the functions conferred on it by the scheme constitution and the Corporations Act. The argument focused on the breadth of powers under cl 11 of the scheme constitution.
Clause 11 of the scheme constitution sets out the powers of the responsible entity. That clause reads:
Subject to this Deed, the Responsible Entity has within and outside Australia all the powers in relation to the Scheme, its Scheme Property and Scheme Liabilities, that it is legally possible for a natural person or corporation to have, including (but not limited to) to invest in real or personal property of any nature, and to borrow and raise money and incur liabilities and obligations of any kind, as if it were the absolute and beneficial owner of all Scheme Property. The Responsible Entity, by power of attorney or otherwise, may authorise one or more persons…to do anything that the Responsible Entity may lawfully delegate, including, but not limited to, holding any Scheme Property and executing documents on its behalf.[53]
[53]Scheme Constitution cl 11.
APIC accepts that the rights granted to the responsible entity under a RMA are scheme property, but submits that the members’ reversionary interest in the title is not scheme property. The defendant submits that cl 11 of the scheme constitution expressly confines powers of the responsible entity to scheme property.
APIC submits that Vasco’s control and management of members’ interests is subject to the scheme constitution and the transaction documents as defined therein. APIC contends that the effect of the evergreen RMAs was to remove a fixed end date to the RMA beyond which either party has rights regarding termination of the RMA, thus altering the nature of the reversionary right.
APIC referred to Wellington Capital Ltd v Australian Securities and Investments Commission (‘Wellington Capital’)[54] as an illustration of how the powers of a responsible entity under its constitution vis-à-vis its members is approached. Wellington Capital was a responsible entity that sold scheme property in consideration for the issue of shares in the purchaser and transferred shares to scheme investors in proportion to their interests. At issue was the power to distribute scheme income to members as property other than cash. The High Court upheld the declarations made by the Full Federal Court of Australia that the distribution of shares as income was beyond power. The scheme constitution gave Wellington Capital ‘all the powers in respect of the scheme that is legally possible for a natural person or corporation to have’.[55] The constitutional clauses relevant there were described as being facultative, with their purpose being to equip Wellington Capital to undertake its duties to deal with scheme property in accordance with its duties and in the interests of scheme members. It was said to be a power that facilitated extramural dealings but did not authorise intramural dealings involving non-consensual transfers of scheme property.
[54](2014) 254 CLR 288.
[55]Ibid 297 [7].

The first defendant argues that in the present proceeding, similarly, the responsible entity has no power to alter the term of its licence to occupy the lots from that of a fixed term, with either party entitled to terminate on notice at the end of the term, to an open-ended licence to occupy with only the licensee having the power to terminate on notice.
The plaintiff contends that the responsible entity’s powers under cl 11 of the scheme constitution are very broad. Although required to act in the best interests of scheme members, the responsible entity is empowered to act ‘in relation to the Scheme, Scheme Property and Scheme Liabilities’. The plaintiff submits this must include a power to enter into RMAs with room owners, whether for fixed or open-ended periods, to operate throughout the life of the scheme.
The plaintiff submits that there is nothing to suggest that any change to the RMAs requires amendment of the responsible entity’s constitutional powers. The RMA is an agreement to licence the lots for the purpose of carrying out the scheme. The scheme constitution speaks of lots and leases and does not mention RMAs.
Clause 4 of the scheme constitution, as set out above at paragraph [20], provides for the term and purpose of the scheme. The plaintiff draws a distinction between the finite term of the HMA and the term of the scheme which is expressed to operate for an open-ended time period. Termination of the scheme is the earlier of two events, either the scheme is terminated in accordance with the scheme constitution or the Corporations Act, or alternatively, it is wound up. While it is common ground that the responsible entity’s interest in the lots under the RMAs is scheme property, the plaintiff submits that it is entitled to vary the RMAs as it has done without needing a constitutional amendment. The RMAs are a licence entered into for the purpose of carrying out the scheme but are not part of the scheme constitution. The plaintiff submits that evergreen RMAs allow for flexibility in negotiating a further HMA when the present HMA expires.

F Consideration

F.1 The Opening Date

The parties accept determination of the Opening Date will be by the proper construction of sub-para (a) of the definition to identify when the last of the Developer’s obligations was met. Under sub-para (a), the Developer must satisfy three conditions. Two conditions, namely completion of the golf course and clubhouse, are accepted as having been completed at the latest by April 2002. Therefore, the Opening Date will be determined by the date of the Developer’s compliance with the third condition. Three of those obligations are uncontroversial, namely:
(i)As per para (a) of the obligations, the plan of subdivision was obtained on 23 May 2002
(ii)As per para (b) of the obligations, the design, construction and fit out of the hotel was completed on the date the occupancy certificate was granted, 15 April 2002; and
(iii)As per para (f) of the obligations, the construction of the golf course and club house was completed by no later than 16 April 2002.[56]
[56]The plaintiff contends this was completed by 2000, see Affidavit of Lyn Ridley sworn 29 September 2022 at [35] and the first defendant contends this was completed by a time prior to 16 April 2002, see First Defendant, ‘First Defendant’s Outline of Submissions’, Submissions in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, 30 November 2023, 21 [67] (‘First Defendant’s Submissions’).
The controversy over the remaining three obligations principally revolves around the construction of the phrase ‘procure completion and execution of all documents required to give effect to the Transaction Documents’ in para (c) of the obligations and relatedly the mortgagee’s consent in para (h). Transaction documents in this context fall into three categories: the HMA, RMAs and contracts of sale of the lots. In my view, the text, the context and purpose of the HMA all lead to a construction that it is addressed to the Developer’s obligation regarding the documents themselves and not the transactions contemplated by those documents.
The text of sub-para (c)(i) of the obligations, requires the Developer to execute contracts of sale to the owners, that is investors who have been issued interests, and by sub-para (c)(ii) to execute RMAs in respect of the lots. Sub-paragraph (c)(iv) of the obligations specifically addresses unsold lots and the Developer’s obligation to also execute a RMA over those interests, notwithstanding that there is not yet an owner identified. While a lot lease remains in place between the Developer and the responsible entity under the original HMA, the parties to this HMA have agreed to replace lot leases with RMAs. By executing RMAs in respect of sold and unsold lots, all lots are made available by the responsible entity to the hotel manager in accordance with the terms of the HMA. This is so even though an individual RMA only becomes operative later at transfer of title.
To the extent that sub-paras (c)(i) and (c)(ii) of the obligations might only apply to lots where an interest has been issued and not to all lots, para (g) makes clear that the Developer’s obligation is to execute all transaction documents to which it is a party. This would oblige it to execute not only RMAs in respect of all lots, but also any contracts of sale as vendor regardless of whether the responsible entity had accepted a holder’s interest or whether there was any application pending. Contrary to the plaintiff’s submission, the text and context suggests that the Developer was required to prepare and execute standard documents whether or not the identity of a purchaser was known. The reference to unsold lots is a powerful indicator that ‘completion’ is not to be construed as the plaintiff contends.
Completion and execution in para (c) of the obligations refers to all documents including those specified. Save for contracts for the sale of land, all involve documents where completion is used in the ordinary sense of finalising the detail and form of the document. To interpret completion as having the specific meaning applicable only to the contracts for the sale of land, would be a construction inapplicable to the other documents addressed by para (c). Were the obligation to settle or complete the sale of land by effecting transfer of title and putting the owner in control of the lot, one would expect a specific reference to completion attaching to the contracts of sale in (c)(i), rather than a reference only in the introductory words applicable to all documents including categories (i) to (iv).
It must be borne in mind that the obligations set out the Developer’s obligations only. They impose no obligation upon owners. The plaintiff submits that a commercial purpose of para (c) of the obligations to ‘procure execution and completion’ is to identify the date that the relevant lot came under the control of an owner.[57] In a similar vein, the plaintiff poses the relevant question as being when entry into a RMA by an owner was satisfied.[58] The obligations do not address what is required of a purchaser at settlement to obtain title, nor the requirement of an owner to enter into a RMA. The Opening Date is not concerned with the individual circumstances of members of the scheme or their rights.
[57]Plaintiff, ‘Plaintiff’s Outline of Submissions’, Submissions in Vasco Trustees Limited v Australian and Pacific Investment Corporation Pty Ltd & Ors S ECI 2022 02457, 30 November 2023, 9 [28] (‘Plaintiff’s Submissions’).
[58]Plaintiff’s Submissions 9 [31].
In the HMA, the term Opening Date is relevant principally to set the date for commencement of the term of Mirvac’s management of the Hotel.[59] It is also the date upon which the HMA replaces, in its entirety, the original HMA and the date upon which Glenbelle and YVG appoint Mirvac to manage and operate the Hotel. The responsible entity enters into the HMA on behalf of scheme members, but does so irrespective of when the individual member’s rights and obligations under the scheme commence. The purpose of the HMA is separate from, and unaffected by, the ongoing process of sale of the lots by the Developer. As set out above at paragraph [47], the HMA itself defines interests as something to be acquired by owners, consistent with the HMA operating independent of, and in some cases prior to settlement of contracts sale.
[59]See HMA dated 28 June 2002 cl 2.3.
The context in which the YVG estimate is provided is important. YVG manages the scheme on behalf of investors. That role requires it to ensure that the various elements of the scheme are all in place. The HMA and the associated RMAs giving occupancy to the hotel manager are critical for the operation of the scheme’s accommodation business. The scheme also requires completion of the other two elements for the scheme to be ready for use, namely the golf course and clubhouse. It is clear in the context of all the obligations, that the Opening Date is the time at which all three elements of the scheme are ready for use.
The Developer, as owner of the subdivided property, is vendor of the lots, landlord of the lot leases and subsequently the body initially granting the licence to occupy to the responsible entity under the RMAs. The RMAs are introduced by the HMA. It is necessary for the Developer to have signed RMAs for all rooms and suites under the obligations because sub-cl 2.1(d) the HMA provides that the responsible entity grants Mirvac a sub-licence to occupy all lots subject to the RMAs.
The HMA is itself one of the documents necessary to implement the scheme. The responsible entity enters into that agreement on behalf of scheme members. The purpose of the HMA is to engage a hotel manager to operate the aggregated accommodation business. The HMA does not in substance address the acquisition of interests by owners.
Recital C of the HMA provides:
[YVG] is;
(a) responsible for managing the development of the Hotel and the sale of Interests to the Owners.
(b)the responsible entity of the Scheme and in such capacity is responsible for managing the Owner’s interests in the Hotel and in order to facilitate the latter role, will manage the rooms and suites of the Hotel on behalf of the Owners pursuant to the Room Management Agreements; and
…
Of course, the transaction documents as defined by the scheme constitution also include the contract of sale and lot lease for the relevant lot. Acceptance of the application by the responsible entity binds vendor and purchaser. The text of sub-para c(i) of the obligations referring to contracts of sale ‘in respect of the sale of rooms…to Owners,’ itself is consistent with a construction that the Developer’s obligation in the sale process, at least as far as the agreement to manage and operate the Hotel, ends with its signing of the necessary documents and not the transfer of title. Settlement of the contract has no bearing on the hotel manager’s obligations, save for the commencement of income payable to an owner once the RMA becomes effective.
Importantly, although the scheme intends investors to enter into contracts of sale directly with the Developer, this was a process managed by YVG. Under cl 8 of the scheme constitution it was for the responsible entity to accept or, in its absolute discretion decline to accept, applications. It is the responsible entity’s notice of acceptance and entry of the applicant into the register that is operative. This responsibility for managing the sale of interests to owners is also recorded in recital C of the HMA itself.[60] Even though the contracts of sale were to be directly with the Developer, the scheme provided for YVG to obtain and provide appropriate documentation to prospective owners. Once the notice of acceptance is provided, the ‘transaction documents are binding on the parties thereto’.[61]
[60]Original HMA, recital C, sub-paras (a) and (b).
[61]Scheme Constitution cl 8.4.
Further, if the Opening date were to be construed by the settlement of the last in time contract of sale, it would be a date incapable of a forward estimate or even anticipation by YVG. Accepting that as at June 2002 a number of lots remained unsold, there would be no basis upon which a party could estimate when all remaining lots would be sold or settled. Any estimate would be unable to rise above speculation. This construction would lead to commercial uncertainty as to the contractual arrangements between Mirvac, Glenbelle and YVG. It is clear from the evidence assembled in the Nutley affidavit that a number of lots remained unsold until well after June 2002. In light of this process, it is difficult to see a commercial purpose in an agreement appointing Mirvac to manage the Hotel for a Term that does not begin until some four years after the Hotel commences its commercial operation.
Neither the Developer nor any individual owner is a party to the HMA. The title transfers have no effect on the management of the Hotel. At settlement there is no change to the occupancy of the lot that is granted by the responsible entity to the hotel manager under the HMA. The only change that occurs is the termination of the lot lease between Developer and responsible entity, to be replaced by the RMA between responsible entity and each owner, the latter taking over the rights and obligations as landlord from the Developer as has occurred progressively with settlements of contracts of sale since the Hotel began its commercial operations.
The transaction documents accompanying an application to invest in the scheme include an individual contract of sale and lot lease. The responsible entity is not a party to contracts of sale but is the tenant under the lot leases. The responsible entity must be in a position to know that the Developer will be bound by the contracts of sale, and has entered into RMAs as contemplated by the HMA. Whilst there is no direct evidence of the state of the transaction documents that accompanied applications, it is clear from the prospectus and scheme constitution that a vendor’s statement, contract of sale and lot lease will all become binding upon parties to those documents upon acquisition of an interest in the scheme. The prospectus notes that the Developer has provided a written undertaking that it will execute and settle each contract of sale. [62]
[62]Prospectus, exhibit page 400.
YVG who is responsible for managing an ongoing sale process for lots, was in a position to know of the Developer’s compliance with procuring the documentation identified in the obligations. That documentation was necessary for YVG’s management of the sale of lots and for the sales to be subject to the necessary encumbrances that allow the investment scheme to operate. Settlement of the contract of sale for each lot was not essential to the HMA. Rather, at settlement, the lot lease was replaced by the RMA and the effective date of the RMA is the date of completion of the contract of sale.
The evidence suggests that a number of RMAs were signed as between YVG and the Developer in May 2002. It is clear that a number of those were signed later by owners at the time of their subsequent acquisition of an interest.
The plaintiff’s submission that the commercial purpose of the HMA is to provide all new investors with an investment of at least the full term of the HMA starting from when they obtain title to the lot cannot be accepted. The purpose of the HMA is to facilitate the business of the managed investment scheme. It is not the vehicle for determining the commencement of interests of each owner. The term of individual investment is set by the scheme constitution and the date of the acceptance of an application. The effective date of the RMAs, is defined to be the date of settlement of each individual contract of sale.
The HMA addressed the date of individual investments by providing a guaranteed distribution to those owners entitled to a monthly distribution guaranteed over a two-year guarantee period, or pro rata for such of the guarantee period as is applicable. There is little commercial sense in providing a guarantee that is available to all owners for the full two-year period, by reference to a date long after which the initial investors first became entitled to a distribution. A HMA intended to operate for a term that was to commence some four years after the date of the agreement, with such delayed and universal guarantee payments, would not be a construction likely to induce early investment and increase the likelihood of commercial success of the scheme. The context and purpose of the scheme does not contemplate an investment held in abeyance until transfer of the last title in the subdivision.
The Developer’s obligation to complete and execute documents regarding ‘arrangements with the Golf Club’ is, as the plaintiff suggests, likely a reference to club membership. The post-HMA contracts include wording that the ‘Settlement Date is the date upon which vacant possession of the property and chattels and entitlement to lodge membership and Heritage Interest must be provided, namely upon acceptance of title…’.[63] Under the pre-HMA contract the reference to club membership was not included as passing at settlement and it is not clear how golf club membership was intended to be conveyed in those cases. Clearly this change reflects a requirement to document membership in sub-para (c)(iii) of the obligations and is met upon the Developer signing the contract of sale.
[63]‘Contract of Sale – Lot 126’ which forms part of exhibit bundle LR-1 to Affidavit of Lyn Ridley sworn 29 September 2022, exhibit page 576 (‘Lot 126 Contract of Sale’).
The plaintiff contends that para (h) of the obligations requires the Developer to obtain a mortgagee’s consent. The certificates of title show mortgages over subdivided titles that were progressively discharged as individual lots were transferred to investors. The plaintiff contends that evidence of discharge is sufficient to satisfy para (h) and, consistent with its construction of (c), this obligation was also satisfied at settlement of the last individual lot sold. However, that construction ignores the qualification that it relates to transaction documents to which Mirvac is a party. Mirvac is a party only to the HMA. Mirvac is not a party to any of the individual contracts of sale for lots. Nor is it any longer the owner of the management lot. As such there is no mortgagee deed of consent required to be obtained by the Developer. In my view para(h) of the obligations has no role to play in determining the Opening Date.
The Opening Date construed as the date by which the developer had completed and executed all the documents contemplated by obligation (c), might be thought to be most accurately 28 June 2002 when the HMA was in fact signed. The evidence relied on by the first defendant in support of compliance by a slightly earlier date of 10 June 2002 was the financial records of the initial responsible entity. The financial report for year ended 30 June 2002 indicated that room revenue and income guarantee revenue were received and that distribution occurred in accordance with the scheme constitution. A letter from YVG dated 30 August 2002, predating the financial returns indicated that there were 19 days operation of the scheme in the 2001/2002 financial year which is submitted to be the factual basis for the 10 June estimate. I would conclude that the YVG was satisfied that the developer had procured complete documents and executed those documents necessary to give effect to the HMA, the RMAs and the contracts of sale by 10 June 2002. The term of the hotel operator’s management of the Hotel therefore began on 10 June 2002. Its term was extended to 20 years and expired on 10 June 2022.

F.2 Validity of the Evergreen RMAs

The scheme constitution does not express that the scheme is to operate for a fixed term. In this it does differ from the HMA and the original RMAs. However, as set out earlier, the scheme constitution defines and attaches as schedules a HMA and a lot lease. The interpretation clause of the scheme constitution provides that a reference to the deed includes a reference to each schedule to the deed.[64]
[64]Scheme Constitution cl 2, sub-para (j).
Both the original HMA and the lot leases in evidence provided for a finite term. That was for a ten-year period with two five-year extensions at Mirvac’s election.[65] The responsible entity can only give notice of an extension where the hotel manager has exercised its right to extend the HMA.[66] It has no power to initiate any extension of the HMA. Nor did the RMA terms give the responsible entity a freestanding right to extend the licence in the absence of an extension of the HMA.
[65]Lot Lease cl 2.2.
[66]Lot Lease cl 6.2.
The original leases and the original RMAs both made provisions in similar terms for a monthly tenancy when the lease[67] or RMA expires. The original RMA provided at cl 6.4:
(a)If the Responsible Entity continues to occupy the Lot after the Expiry Date (except for any further term under clause 6.3) with the consent of the Owner, the Responsible Entity will do so on a month-by-month basis (‘Monthly Licence’).
(b)The Monthly Licence will be subject to the terms of this Agreement (in so far as they are applicable).
(c)The Owner or the Responsible Entity may terminate the Monthly Licence on any day by giving one month’s written notice to the other.
(d)The Monthly Licence terminates at midnight on the same day of the next month as the day on which the termination notice is served.
[67]Lot Lease cl 2.5.
The plaintiff submits that evergreen RMAs allow for the responsible entity to negotiate or renegotiate a new HMA. While that may be so, the terms of a new or re-negotiated agreement with a hotel manager, could only be negotiated by the responsible entity as agent for the owners. Evergreen RMAs would permit no opportunity for owners to approve the new contractual arrangements made on their behalf. The scheme arrangements, providing for a monthly tenancy with mutual notice provisions to continue when the scheme passes the end of the fixed hotel management period, is consistent with an intention that any further hotel management terms are not entered into by the responsible entity without some reference to the landlord owners.
As noted above at paragraph [32] the Prospectus contemplated that expiry of the HMA would have a likely impact on investment and the need for new management arrangements. This lends weight to the conclusion that the responsible entity does not have power to enter into licencing arrangements beyond the term of the HMA without the owners having knowledge of the new management arrangements proposed.
The scheme constitution gives broad powers to the responsible entity in relation to managing the hotel accommodation business on behalf of owners. That aggregate business can be managed by the responsible entity as if it were the owner of scheme property.[68] However, it manages that business through an agreement with the owners to licence their property for the purpose of providing a sub-licence to the hotel manager. The evergreen RMAs have the effect of providing a licence to the responsible entity without knowing the terms of any further sub-licence that may be negotiated. In a scheme where owners are not entitled to withdraw during its currency, the effect of the evergreen RMAs is to provide the responsible entity a right to occupy a lot indefinitely on such terms as it decides. This change is one as between members of the scheme and the responsible entity, or to use the language of Wellington Capital, an ‘intramural change’. It has the effect of removing the right of the owner of the freehold title to terminate the licence granted to the responsible entity at the expiry of the extended period of the HMA, notwithstanding that the scheme itself might not have ended.
[68]Scheme Constitution cl 13.
Whether or not members consented to sign the evergreen RMAs, the question I am concerned with is whether entering into such agreements is within the power of Vasco. Clause 11 of the scheme constitution gives wide powers to the responsible entity, but they are subject to other provisions in the scheme constitution. By reference to the schedules forming part of the scheme constitution, the power of the responsible entity to enter into an occupancy agreement with investors, whether by lease or licence, is limited to agreements for a finite period consequent to a HMA. The constitution is silent as to the power of the responsible entity to enter into a further HMA upon termination of the HMA document that was binding on investors as an encumbrance on their title
Upon the ending of the existing HMA, the status of the RMAs agreed between investors and responsible entity are monthly tenancies subject to notice by either party. The responsible entity does not have the power to engage in the RMAs as tenant with the owners as landlords on the basis that it acquires an open-ended licence beyond the term of the HMA that encumbered the titles.
As came to pass, the original HMA from 1999 was replaced in 2002, and made the changes from lot leases to licences under the RMAs as agreed by YVG and Mirvac. The changes did not affect the term of the agreement to occupy lots given to the responsible entity because both the HMAs and RMAs were expressed to commence on the defined Opening Date and were for a fixed term.
I do not accept that the responsible entity was not required to modify the scheme constitution because the RMAs are not mentioned in that document. The constitution sets out the primary object of the scheme to invite participation in the benefit of ownership and conduct the business of hotel accommodation on behalf of each holder or owner.[69] Ownership was a benefit of the scheme structure as was the hotel business operated to generate income using that property asset. The HMA and the occupation arrangements necessary to conduct the business are referenced in the scheme constitution between YVG and owners. A substantive change, to extend occupancy arrangements beyond the term of a valid and current HMA, is not contemplated by the powers conferred by the scheme constitution.
[69]Scheme Constitution cl 5.
That right of members to terminate occupation of lots was granted notwithstanding that the scheme, as defined in its constitution, contemplated perhaps a further agreement to manage the hotel that might become applicable at the ‘relevant time’ when the existing HMA expired. While this right may give rise to difficulties for the continuing aggregation of each holder’s business established by the scheme constitution, it is not necessary to determine whether, and by what means, a responsible entity may be able to engage with owners in further RMAs. The question of validity is answered by two observations.
First, the responsible entity has not dealt equally with members of the same class of interests, as the present position is that some scheme members have the right to terminate on one month’s notice once the HMA expires, and other members have no right to terminate. The manner of moving to evergreen RMAs has not dealt with members of the same class equally. Second, the evergreen RMAs provide no mechanism for the members to approve entry into or terminate any agreement with the responsible authority by which their rooms are provided to a hotel manager in any further HMA. Upon entry into the scheme, investors understood the terms by which they were to make their property investment available for a managed investment in hotel accommodation. By the introduction of evergreen RMAs those terms are no longer known and no end date for the licencing of rooms is set.
As a result the evergreen RMAs are not valid.
I will make declarations that:
(a)The Opening Date
(i)The Opening Date as defined in paragraph 1 of the Hotel Management Agreement dated 28 June 2002 is 10 June 2002; and
(ii)The term of the Hotel Management Agreement, extended by the Hotel Manager pursuant to an option and a further option in clause 2.4 of that agreement, expired on 10 June 2022.
(b)The Evergreen RMAs
(i)In entering into the Room Management Agreements for Lot 112 and Lot 131 with APIC, Vasco was not acting in accordance with its powers under the scheme constitution; and
(ii)The ‘evergreen’ Room Management Agreements are not valid.
I will hear the parties on the appropriate form of orders and as to costs.

SCHEDULE OF PARTIES

S ECI 2022 02457
BETWEEN:
VASCO TRUSTEES LIMITED (ACN 138 715 009) (as responsible entity for the Heritage Lodge Scheme)	Plaintiff
- v -
AUSTRALIAN AND PACIFIC INVESTMENT CORPORATION PTY LTD (ACN 005 445 107) in its own capacity and in its capacity as representative of the members of the HERITAGE LODGE SCHEME (ARSN 089 099 249)	First Defendant
AUSTPAC PROPERTIES PTY LTD (ACN 140 675 216)	Second Defendant
YARRA VALLEY LODGE PTY LTD (ACN 159 460 303)	Third Defendant

[2024] VSC 515

29 August 2024