Huntley Management Limited v Australian Olives Limited [2010] FCAFC 98

FEDERAL COURT OF AUSTRALIA

Huntley Management Limited v Australian Olives Limited [2010] FCAFC 98 Citation: Huntley Management Limited v Australian Olives Limited [2010] FCAFC 98

Appeal from: Huntley Management Ltd v Australian Olives Ltd (No 3) [2009] FCA 1549

Parties: HUNTLEY MANAGEMENT LIMITED (ACN 089 240 513) v AUSTRALIAN OLIVES LIMITED (ACN 078 885 042); AUSTRALIAN OLIVES LIMITED (ACN 078 885 042) v HUNTLEY MANAGEMENT LIMITED (ACN 089 240 513)

File number: NSD 16 of 2010

Judges: JACOBSON, GILMOUR and FOSTER JJ

Date of judgment: 12 August 2010

Catchwords: CONTRACTS – whether, upon the true construction of the constituent documents of three managed investment schemes, management fees payable in advance were paid in satisfaction of a present debt and were therefore not apportionable – whether the provisions of s 232 of the Property Law Act 1974 (Qld) apply to payments made in advance – s 232 held not to apply to payments made in advance – in the circumstances of the present case, management fees held not to be apportionable CORPORATIONS – consideration of the meaning of ss 601FJ, 601FS and 601FT of the Corporations Act 2001 (Cth) – a change in the responsible entity of a managed investment scheme held not to be effective unless and until ASIC's record is relevantly altered – the relevant part of ASIC's record is that part in which the responsible entity is named – the passing of a resolution by the members of a managed investment scheme to remove one responsible entity and replace it with another is only a step along the way in the process of effecting a change in that responsible entity – neither s 601FS nor s 601FT of the Corporations Act permits a rewriting of contracts to which the former responsible entity was a party – those sections place a new responsible entity in the shoes of the former responsible entity in relation to rights, obligations and liabilities that would have been those of the former responsible entity in respect of the post changeover period but for the changeover – in the present case, at the point of changeover, there were relevantly no rights, obligations and liabilities which survived the changeover – the provisions of s 601FS and s 601FT of the Corporations Act were not engaged in the circumstances of the present case RESTITUTION – claim for money had and received by the new responsible entity of three managed investment schemes against the former responsible entity first raised on appeal – claim not available because not pleaded, not run at trial and made too late – claim for money had and received, in any event, not available to the new responsible entity because that entity was not the payer of the amounts the subject of the claim for money had and received – claim for money had and received rejected