Walsh & Company Investments Limited as responsible entity of Fort Street Real Estate Capital Fund I, Fort Street Real Estate Capital Fund II, Fort Street Real Estate Capital Fund III and Fort Street Real Estate Capital Fund IV (Plaintiff) [2020] NSWSC 1746

Supreme Court New South Wales

Medium Neutral Citation: Walsh & Company Investments Limited as responsible entity of Fort Street Real Estate Capital Fund I, Fort Street Real Estate Capital Fund II, Fort Street Real Estate Capital Fund III and Fort Street Real Estate Capital Fund IV (Plaintiff) [2020] NSWSC 1746 Hearing dates: 10, 13, 23 November, 2 December 2020 Date of orders: 7 December 2020 Decision date: 07 December 2020 Jurisdiction: Equity - Corporations List Before: Black J Decision: Plaintiff would be justified in giving effect to and implementing proposal as defined in Summons filed on 28 April 2020, and giving effect to consequential constitutional amendments, on terms as to costs. Order stayed pending further notification to several unitholders. Catchwords: CORPORATIONS – Arrangements and reconstructions – Application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme – Whether scheme is fair and reasonable so that an intelligent and honest person who was a unitholder, properly informed and acting alone, might approve it – Whether issues resulting in small number of non-delivery of scheme materials were material – Where financial advisor related to Plaintiff engaged in communications to unitholders that were not disclosed to the Court at first hearing. Legislation Cited: - Corporations Act 2001 (Cth), ss 252F, 601GC, 601KB, 1322 - Corporations (Coronavirus Economic Response) Determination (No. 3) 2020 - Trustee Act 1925 (NSW) s 63 Cases Cited: - Australian Securities and Investments Commission v Australian Property Custodian Holdings Ltd (recs and mgrs apptd) (in liq) (controllers apptd) (No 3) [2013] FCA 1342 - Australian Securities and Investments Commission v Lewski (2018) 362 ALR 286; [2018] HCA 63 - Cachia v Westpac Financial Services Ltd (2000) 33 ACSR 572 - Coates Hire Ltd (No 2) [2007] FCA 2105 - Equititrust Ltd (in liq) (rec apptd) (recs and mgrs apptd) v Equititrust Ltd (in liq) (rec apptd) (recs and mgrs apptd) (No 4) [2017] FCA 1133 - Garrard (t/as Arthur Andersen & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 - Gra-ham Pty Ltd v Perpetual Trustees WA Ltd (1989) 1 WAR 65 - ING Funds Management Ltd v ANZ Nominees Ltd (2009) 228 FLR 444; [2009] NSWSC 234 - Lakis v Lardis (No 4) [2018] NSWSC 1566 - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 - Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 - Mutual Holdings Pty Ltd v Shepard in His Capacity as Administrator of Quest Minerals Ltd (2015) 303 FLR 205; (2015) 110 ACSR 88; [2015] WASC 412 - Re Amcor Limited (No 2) [2019] FCA 842 - Re Australian Pipeline Ltd (2006) 60 ACSR 625; [2006] NSWSC 1316 Re Billabong International Ltd (No 2) [2018] FCA 496 - Re BIS Finance Pty Ltd [2017] NSWSC 1713 - Re Boart Longyear Ltd (2019) 134 ACSR 591; (2019) FCA 62 - Re Centrebet International Ltd [2011] FCA 870 - Re Centro Retail Ltd [2011] NSWSC 1321 - Re Commonwealth Managed Investments Ltd [2014] NSWSC 244 - Re Cromwell Property Securities Ltd [2006] NSWSC 1449 - Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844 - Re Go Energy Group Ltd [2019] NSWSC 558 - Re Homemaker Retail Management Ltd (2001) 40 ACSR 116 - Re Investa Listed Funds Management Ltd [2016] NSWSC 344 - Re Investa Listed Funds Management Ltd [2016] NSWSC 369 - Re Macquarie Goodman Funds Management Ltd (2004) 52 ACSR 194 - Re Mirvac Limited (1999) 32 ACSR 107 - Re Prime Media Group Ltd [2019] NSWSC 1888 - Re SAI Global Ltd [2016] FCA 1312 - Re Tawana Resources NL (No 2) [2018] FCA 1724 - Re Trust Company Ltd [2013] NSWSC 1946 - Re Walsh & Company Investments Limited as responsible entity of Fort Street Real Estate Capital Fund I, Fort Street Real Estate Capital Fund II, Fort Street Real Estate Capital Fund III and Fort Street Real Estate Capital Fund IV [2020] NSWSC 1509 - Walter Rau Neusser Oel Und Fettag AG v Cross Pacific Trading Ltd [2005] FCA 955 - Weinstock v Beck (2013) 251 CLR 396; [2013] HCA 14 Category: Principal judgment Parties: Walsh & Company Investments Limited as responsible entity of Fort Street Real Estate Capital Fund I, Fort Street Real Estate Capital Fund II, Fort Street Real Estate Capital Fund III and Fort Street Real Estate Capital Fund IV (Plaintiff) Mr W Arthur and Ms S Hathaway as trustees of Sonia Hathaway Superannuation Fund (Interested Party) Australian Securities & Investments Commission (from 13 November 2020) Representation: Counsel: J Williams SC (Plaintiff) R Scheelings (Australian Securities & Investments Commission)