Cachia v Westpac Financial Services Ltd [2000] FCA 161

FEDERAL COURT OF AUSTRALIA Cachia v Westpac Financial Services Ltd [2000] FCA 161 CORPORATIONS – unit trust – merger of unit trusts contrary to wishes of minority unitholder - whether amendments to trust deed were ultra vires – whether amendments to trust deed were a fraud on the power relied upon - whether letter was a "request for redemption" recognised under the Trust Deed – whether the manager had a duty to advise that the application for redemption was not in proper form - whether the merger of the unit trusts was unnecessary in the circumstances – whether there was an entitlement to immediate payment – whether "particular amendments" become "entrenched provisions" when passed at a special variation meeting – whether amendment to the trust deed can retrospectively alter unitholder's rights – power to vary limited to amendments which do not alter the substratum of the trust – "fraud on the minority" does not extend to the compulsory expropriation of units in unit trust TRADE PRACTICES – allegation that Information Memorandum distributed to unitholders was misleading and deceptive for want of full disclosure – whether manager had an interest in the merger – representations as to future matters Corporations Law ss 1366, 1069(1)(c), 1069(7), 1076A, 1076K, 1076(L)(1)(a), 1076L(1)(b), 1076L(2), 1076M(4), 1076T, 1076T(2), 1076T(3), 1076U, 1076V, 1076X, 1076Y. Bulfin v Bebarfald's Ltd (1938) 38 SR (NSW) 423 applied Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 applied Gambotto v WCP Ltd (1995) 182 CLR 432 distinguished Gwyn v Neath Canal Navigation Co (1868) L.R. 3 Exch 209 cited Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 distinguished Pepe v City & Suburban Permanent Building Society [1893] 2 Ch 311 applied Gra-ham Australia Pty Ltd v Perpetual Trustees WA Ltd (1989) 1 WAR 65 applied Re Dyer [1935] VR 273 cited In re Ball's Settlement Trusts, Ball v Ball [1968] 1 WLR 899 applied Re Blocksidge [1997] 1 Qd R 234 cited Kearns v Hill (1990) 21 NSWLR 107 cited Locke v Westpac Banking Corporation (1991) 25 NSWLR 593 cited Vatcher v Paull [1915] AC 372 cited Lancedale Holdings Pty Ltd v Health Group Australasia Pty Ltd [1999] NSWSC 609 cited Lancedale Holdings Pty Ltd v Health Group Australasia Pty Ltd [1999] NSWCA 460 cited Charles v Federal Commissioner of Taxation (1953-1954) 90 CLR 598 applied