Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd [2025] NSWCA 15

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd [2025] NSWCA 15 Hearing dates: 17 December 2024 Date of orders: 20 February 2025 Decision date: 20 February 2025 Before: Ward P at [1]; Stern JA at [164]; Griffiths AJA at [165] Decision: 1. Allow the appeal. 2. Set aside the declarations and order in (1)-(3) at [155] of the primary judgment. 3. Order the Trustee to redeem the units in certificate 3 in the Aurora Australasia Fund Unit Trust and pay the sum of $1,696,472.17 in accordance with directions to be given to it by its director, Mr Driver. 4. Set aside the costs orders at (2)-(4) of the costs judgment and in lieu therefore order that the second and third respondents pay the appellants' and first respondent's costs of the proceedings at first instance (save for the costs in respect of the appellants' claim for the removal of the first respondent as trustee to the extent that claim was based upon matters other than the non-redemption of the units in certificate 3). 5. Order the second and third respondents to pay the appellants' costs of the appeal. 6. For the avoidance of doubt, note that Order 5 of the costs orders made by the primary judge remains operative. 7. Order that the first respondent bear its own costs of the appeal. Catchwords: EQUITY - equitable charges and liens – where debtor emails creditor offering a pledge of units in trust – where creditor does not accept pledge – whether debtor conferred an equitable charge over units as security for repayment of loans – whether the claim for an equitable charge fails under the requirements for signed writing in s 23C(1)(c) of the Conveyancing Act 1919 (NSW) EQUITY - trusts and trustees - unit trusts - whether trustee obliged to process redemption request in amount claimed by appellants Legislation Cited: Conveyancing Act 1919 (NSW), s 23C(1)(c) Interpretation Act 1987 (NSW), Sch 4 Cases Cited: Aurora Australasia Pty Limited v Hunt Prosperity Pty Limited [2024] NSWSC 195 Aurora Australasia Pty Ltd v Hunt [2024] NSWSC 680 Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd trading as trustee of the Aurora Australasia Investment Fund Unit Trust [2024] NSWSC 1054 Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd trading as trustee of the Aurora Australasia Investment Fund Unit Trust (No 2) [2024] NSWSC 1210 Boulos Holdings Pty Ltd v Edwin Davey Pty Ltd [2021] NSWSC 689 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 Hastie Group Ltd (In Liq) v Bourne; Hastie Group Ltd (In Liq) v Moore [2017] NSWSC 709 In the matter of NL Mercantile Group Pty Ltd [2018] NSWSC 1337 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 Metwally v University of Wollongong (1985) 60 ALR 68 Morris Finance Ltd v Free [2017] NSWSC 1417 Naaman v Jaken Properties Australia Pty Ltd [2025] HCA 1 Porter v Bonarrigo [2009] VSC 500 PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 [1992] ANZ ConvR 513 Re Roberts; ex parte Australian Telecom Employees Credit Co-Operative Ltd v Taylor (1982) 84 FLR 88 Roberts v Investwell Pty Ltd (in liq) [2012] NSWCA 134 Swiss Bank Corporation v Lloyds Bank Limited [1982] AC 584 Toocooya Investments Pty Ltd (1978) 3 ACLR 252 Young v Matthew Hall Mechanical & Electrical Engineers Pty Ltd (1988) 13 ACLR 399 Texts Cited: Halsbury's Laws of Australia, 295 – Security Interests – General Principles J Flood, K Galloway and M Castan, Fisher and Lightwood's Law of Mortgage 15th ed, 2019, Lexis Nexis P Parkinson, The Principles of Equity (2nd ed, 2003, Lawbook Co) Category: Principal judgment Parties: Aurora Australasia Pty Ltd (First Appellant) David James Driver (Second Appellant) Hunt Prosperity Pty Ltd (First Respondent) AMHP Pty Ltd (Second Respondent) Adam Hartley (Third Respondent) Representation: Counsel: MR Elliott SC (Appellants) S Murray (First Respondent) JM Ireland KC (Second and Third Respondents)