QB4 Capital Pty Limited v Guardian Securities Limited [2023] FCAFC 72

Federal Court of Australia QB4 Capital Pty Limited v Guardian Securities Limited [2023] FCAFC 72 Appeal from: QB4 Capital Pty Limited v Guardian Securities Limited [2022] FCA 262

File number(s): NSD 582 of 2022

Judgment of: MOSHINSKY, STEWART AND JACKMAN JJ

Date of judgment: 19 May 2023

Catchwords: EQUITY – registered managed investment scheme – where underlying assets held on sub-trust for the unitholders in the registered managed investment scheme – whether expenses properly incurred so as to entitle the trustee to indemnity from the trust property – "properly incurred" means reasonably and honestly incurred – onus of demonstrating that expenses were not properly incurred lies on the party denying the right to indemnity – where positions of conflict enabled by the trust constitution and s 601FC(1)(c) of the Corporations Act 2001 (Cth) – where trustee indemnified from the assets of one sub-trust and not the other – indemnity available in relation to invoices for review of managed investment scheme and legal costs CONTRACT – payments made under deed of settlement – where payer repudiates deed of settlement and payee terminates contract – where clause provides that benefits and remedies may not be retained if they are due to the existence of the deed of settlement – clause provides a mechanism, and there is a contractual obligation, to repay the amount paid COSTS – argument that costs of the proceedings at first instance should be paid on the indemnity basis – argument that a non-party costs order should have been made – no error in the exercise of the primary judge's discretion in the sense of House v The King (1936) 55 CLR 499 demonstrated