FEDERAL COURT OF AUSTRALIA Dunner, in the matter of Capital Securities (Aust) Mortgage Fund One Pty Ltd (In Liquidation) (ACN 114 766 157) v Capital Securities (Aust) Limited [2011] FCA 1264 Citation: Dunner, in the matter of Capital Securities (Aust) Mortgage Fund One Pty Ltd (In Liquidation) (ACN 114 766 157) v Capital Securities (Aust) Limited [2011] FCA 1264 Parties: ANDREW LEONARD DUNNER IN HIS CAPACITY AS LIQUIDATOR OF CAPITAL SECURITIES (AUST) MORTGAGE FUND ONE PTY LTD (IN LIQUIDATION) (ACN 114 766 175) and CAPITAL SECURITIES (AUST) MORTGAGE FUND ONE PTY LTD (IN LIQUIDATION) (ACN 114 766 175) v CAPITAL SECURITIES (AUST) PTY LTD (ACN 099 360 675) and AUSTRALIAN SCHOLARSHIPS GROUP FRIENDLY SOCIETY LTD (ACN 087 648 879) and BERNHARD ULRICH SEIFERT File number: VID 428 of 2010 Judge: NORTH J Date of judgment: 14 October 2011 Date of hearing: 14 October 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 5 Counsel for the Plaintiffs: Ms J Treleaven Solicitor for the Plaintiffs: Voitin Lawyers Counsel for the First and Second Defendants: Mr B Ross Solicitor for the First and Second Defendants: Rigby Cooke Solicitor for the Fourth Cross Defendant: Nadina Dal Bo for Simon Nixon Lawyer IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 428 of 2010 IN THE MATTER OF CAPITAL SECURITIES (AUST) MORTGAGE FUND ONE PTY LTD (IN LIQUIDATION) (ACN 114 766 175) BETWEEN: ANDREW LEONARD DUNNER IN HIS CAPACITY AS LIQUIDATOR OF CAPITAL SECURITIES (AUST) MORTGAGE FUND ONE PTY LTD (IN LIQUIDATION) (ACN 114 766 175) First Plaintiff / First Cross Respondent CAPITAL SECURITIES (AUST) MORTGAGE FUND ONE PTY LTD (IN LIQUIDATION) (ACN 114 766 175) Second Plaintiff / Second Cross Respondent AND: CAPITAL SECURITIES (AUST) PTY LTD (ACN 099 360 675) First Defendant / Third Cross Respondent AUSTRALIAN SCHOLARSHIPS GROUP FRIENDLY SOCIETY LTD (ACN 087 648 879) Second Defendant / Cross Claimant AND: BERNHARD ULRICH SEIFERT Fourth Cross Respondent JUDGE: NORTH J DATE OF ORDER: 14 OCTOBER 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. By 28 October 2011, the second defendant file and serve any amended defence, if so advised, limited to the management fee issue. 2. By 25 November 2011 the first plaintiff file and serve any affidavit on which he intends to rely in support of the management fee claim. 3. The directions hearing is adjourned to 10.15 am on 5 December 2011. 4. The costs of the application under s 500(2) of the Corporations Act 2001 (Cth) brought by the second defendant and of this directions hearing are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 428 of 2010 IN THE MATTER OF CAPITAL SECURITIES (AUST) MORTGAGE FUND ONE PTY LTD (IN LIQUIDATION) (ACN 114 766 175) BETWEEN: ANDREW LEONARD DUNNER IN HIS CAPACITY AS LIQUIDATOR OF CAPITAL SECURITIES (AUST) MORTGAGE FUND ONE PTY LTD (IN LIQUIDATION) (CAN 114 766 175) First Plaintiff / First Cross Respondent CAPITAL SECURITIES (AUST) MORTGAGE FUND ONE PTY LTD (IN LIQUIDATION) (ACN 114 766 175) Second Plaintiff / Second Cross Respondent AND: CAPITAL SECURITIES (AUST) PTY LTD (ACN 099 360 675) First Defendant / Third Cross Respondent AUSTRALIAN SCHOLARSHIPS GROUP FRIENDLY SOCIETY LTD (ACN 087 648 879) Second Defendant / Cross Claimant AND: BERNHARD ULRICH SEIFERT Fourth Cross Respondent JUDGE: NORTH J DATE: 14 OCTOBER 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 An application was brought by Australian Scholarship Group Friendly Society Ltd (ASG), the second defendant, for leave under s 500(2) of the Corporations Act 2001 (Cth) to proceed against the second plaintiff, Capital Securities (Australia) Mortgage Fund One Pty Ltd (in liquidation) (CSAM) to claim an amount of approximately $290,000 presently held in a Westpac bank account. This money, it is said, is part of a $50 million trust fund provided by ASG to CSAM for investment management. CSAM, as trustee, was to invest and manage that fund in accordance with the terms and conditions of a trust deed. 2 At the same time the first plaintiff, as liquidator of CSAM, makes a claim against ASG for fees for managing the trust fund. He claims that these management fees are due under the trust deed for the months of October, November and December 2009 and amount to $242,020.98. 3 It is not contested by CSAM and its liquidator that the funds in the Westpac account are due to ASG subject only to the determination of the management fees issue. Consequently, it is agreed by all parties that the matter which should receive first attention by the Court is the determination of whether CSAM is entitled to management fees as claimed. 4 If the Court is able to determine that issue, there is no pressing need for the application under s 500(2) to be progressed at present. Consequently, the parties have agreed to the necessary preparatory steps for a trial of the management fees issue and to adjourn the s 500(2) application until that issue is determined. 5 The fourth cross-respondent, Bernhard Ulrich Seifert, was represented at this hearing. No claim is made against him in respect of the management fees. As the other claims in the litigation are presently not being progressed no interlocutory orders are to be made against him at this stage. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 4 November 2011