Wellington Capital Limited v Australian Securities and Investments Commission [2014] HCA 43

HIGH COURT OF AUSTRALIA

FRENCH CJ, CRENNAN, KIEFEL, BELL AND GAGELER JJ

WELLINGTON CAPITAL LIMITED APPELLANT

AND

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ANOR RESPONDENTS

Wellington Capital Limited v Australian Securities and Investments Commission [2014] HCA 43 5 November 2014 S275/2013

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

B W Walker SC with N M Bender for the appellant (instructed by McCullough Robertson Lawyers)

J T Gleeson SC, Solicitor-General of the Commonwealth with J A Halley SC and D F C Thomas for the first respondent (instructed by Australian Securities and Investments Commission)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Wellington Capital Limited v Australian Securities and Investments Commission

Corporations – Managed investment schemes – Role of responsible entity under Ch 5C of Corporations Act 2001 (Cth) – Construction of scheme constitution – Where responsible entity granted all powers "legally possible" for person or corporation to have – Where responsible entity made in specie distribution of scheme property to unit holders – Whether distribution beyond responsible entity's powers under scheme constitution.

Trusts – Managed investment schemes – Responsible entity as statutory trustee –Whether general principles of law relating to trusts apply to responsible entity's functions under scheme constitution.

Practice and procedure – Federal Court of Australia – Where Federal Court made declaration that responsible entity had no power under scheme constitution to distribute scheme property to unit holders – Where unit holders not represented in appeal – Whether Federal Court erred in exercising discretion to make declaration.