QB4 Capital Pty Limited v Guardian Securities Limited [2022] FCA 262

FEDERAL COURT OF AUSTRALIA

QB4 Capital Pty Limited v Guardian Securities Limited [2022] FCA 262 File numbers: NSD 470 of 2020 NSD 99 of 2021

Judgment of: LEE J

Date of judgment: 22 March 2022

Catchwords: CORPORATIONS – registered managed investment scheme – dispute between responsible entity of registered investment scheme and investment manager – legitimacy of payments made from trust property – whether payments authorised under trust constitution – whether management fees and legal costs properly incurred – whether invoices should be paid from the trust property of the registered investment scheme – where receivers appointed – whether unit trusts ought to be wound up PRACTICE AND PROCEDURE – where list of agreed issues for determination – application by applicant for leave to amend further amended originating application and fourth further amended statement of claim – where proposed amendments seek to bring new derivative claim – where application foreshadowed on final day of hearing –amendment unnecessary EQUITY – breach of trust – equitable compensation –declaratory relief – hostile litigation concerning property held on trust – whether responsible entity breached trust – whether unitholders have standing to seek equitable compensation – whether unitholders beneficiaries of trust EQUITY – cross-claim for declaratory relief – whether responsible entity entitled to rely on rights of indemnity – whether management fees and legal costs properly incurred CONTRACT – payments made under deed of settlement – where Guardian defaulted under deed of settlement – where deed of settlement subsequently terminated – where Guardian sought repayment of money as a result of failure of consideration and mistake RESTITUTION – recovery – whether total failure of consideration – whether partial performance either insubstantial or severable COSTS – significant costs – where responsible entity intentionally defaulted under settlement deed – where settlement deed terminated – whether non-party personally liable for costs