Vinci v Imperial Bourke Noms Pty Ltd - [2000] VSC 172

SUPREME COURT OF VICTORIA

COMMERCIAL & EQUITY DIVISION

CORPORATIONS LIST

No. 5354 of 98

BRUNO VINCI and BAMCO PTY LTD	Plaintiffs
v
IMPERIAL BOURKE NOMINEES PTY LTD & ORS	Defendants

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2000
DATE OF JUDGMENT:	27 April 2000
CASE MAY BE CITED AS:	Bruno Vinci and Bamco Pty Ltd v Imperial Bourke Noms Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2000] VSC 172

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Trusts – disputes between unit-holders – deadlock affecting corporate trustees conducting hotel business and holding hotel property – appointment of receiver and manager of trust property with power of sale.

Corporations – appointment of receiver and manager of corporate trustees.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Garrett QC with Mr J. Nixon	Issac Brott & Co
For the third, fourth and fifth Defendants	Mr S. Wilson QC with Ms K. Macmillan	Herbert Geer & Rundle
For the sixth and seventh Defendants	Mr P. Bornstein	Efron & Associates

HIS HONOUR:

The plaintiffs commenced this proceeding by originating motion just over two years ago seeking the removal of the first defendant as trustee of the Imperial Business Unit Trust,("the Business trust"), and the removal of the second defendant as trustee of the Imperial Property Trust, (the "Property trust"), the appointment of an interim receiver and manager to the assets and undertakings of both trusts and accounts and inquiries.

The Property trust owns the land at 2-8 Bourke Street, Melbourne upon which stands the Imperial Hotel, in which is carried on the business conducted by the Business trust. The plaintiffs contended then and still contend that one or other of the plaintiffs is entitled to 10 per cent of the units in each of the said unit trusts.

I think that it is common ground at least that the property and hotel business were purchased in or about March 1994 pursuant to an arrangement between the Pellegrino/Ursini interests - now the third, fourth and fifth defendants - and the Castelli interests - now the sixth and seventh defendants - if not the plaintiffs as well. The Pellegrino/Ursini interests say the trust units are held as to 50 per cent by them and as to 50 per cent by the Castelli interests. They deny that the plaintiffs have any entitlement to units, but if they do, they say the breakup is 50 per cent, 40 per cent and 10 per cent, or they may say that.

The Castelli interests, as I understand it, say, as do the plaintiffs, that the plaintiffs have a 10 per cent interest and that the other two groups hold 45 per cent each. To some extent only, these questions turn on whether the plaintiffs advanced moneys on their own behalf or for the Castelli interests.

For present purposes it is unnecessary to detail the somewhat tortuous interlocutory processes over the past two years except to mention a few salient matters. By consent points of claim and points of defence and counterclaim…

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.

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Details

Case: [2000] VSC 172
Decision Date: 27 April 2000

CaseChat Overview and Summary

Vinci v Imperial Bourke Noms Pty Ltd is a decision of the Federal Court of Australia. The case involves a dispute between unit-holders of a trust which holds the property of a hotel. The trust is managed by corporate trustees. The dispute relates to a deadlock affecting the corporate trustees in their conduct of the hotel business and their holding of the hotel property. The court was asked to consider whether it should appoint a receiver and manager of the trust property with the power to sell.

The court was required to decide whether a receiver and manager should be appointed to break the deadlock affecting the corporate trustees. The issue involved determining whether the appointment of a receiver and manager was appropriate given the nature of the trust and the deadlock between the unit-holders. The court had to consider whether the deadlock was such that it was necessary to appoint a receiver and manager to manage the hotel business and the hotel property.

The court determined that it was appropriate to appoint a receiver and manager. The court found that the deadlock between the unit-holders was such that it was necessary to appoint a receiver and manager to manage the hotel business and the hotel property. The court held that the appointment of a receiver and manager was an appropriate remedy to break the deadlock and allow the trust to continue to operate. The court found that the appointment of a receiver and manager with the power to sell would allow the trust to continue to operate and would provide a fair outcome for all of the unit-holders.

The court appointed a receiver and manager of the trust property with the power to sell. The court held that the receiver and manager would be responsible for managing the hotel business and the hotel property and would have the power to sell the property if necessary. The court found that the appointment of a receiver and manager was an appropriate remedy in the circumstances of the case and would allow the trust to continue to operate. The court held that the receiver and manager would be responsible for managing the hotel business and the hotel property and would have the power to sell the property if necessary.

Orders