NSW Caselaw
Reported Decision : 42 ACSR 240 (2002) 20 ACLC 1238
New South Wales Supreme Court
CITATION : ASIC v COMMERCIAL NOMINEES [2002] NSWSC 576 CURRENT JURISDICTION: Equity Division Corporations List FILE NUMBER(S) : SC 1363/01 HEARING DATE(S) : 26/06/02; 27/06/02 JUDGMENT DATE : 28 June 2002
Australian Securities and Investments Commission - Plaintiff Commercial Nominees of Australia Limited as trustee for Confidens Investment Trust - Defendant PARTIES : Mr M.W. Prentice - Applicant
JUDGMENT OF : Barrett J
Mr K.R. Turner, Solicitor - Plaintiff COUNSEL : Mr B.A.J. Coles QC/Mr P.J. Dowdy - Applicant Mr P.J. Kelso, Solicitor - Three interested investors Mr J. Ha, interested investor, in person Jan Redfern - Plaintiff SOLICITORS : Henry Davis York - Applicant Taylor Kelso - Three interested investors Mr J. Ha, interested investor, in person CATCHWORDS : CORPORATIONS - unregistered managed investment scheme in course of winding up pursuant to s.601EE by receiver appointed by court - application by receiver for direction as to appropriate method of distributing surplus - jurisdiction to give such direction - need for order under s.601EE(2) causing defined basis of winding up to apply - relevant guidance from termination provisions of trust deed - allocation of loss among investors having "beneficial interest" in differing underlying investments where loss attributable to some investments only. LEGISLATION CITED : Corporations Act 2001 (Cth) Trustee Act 1925 ASIC v Koala Quality Produce Ltd [2002] NSWC 451 Birch v Cropper; Re Bridgewater Navigation Co Ltd (1889) 14 App Cas 525 Brown v Dale (1878) LR 9 ChD 79 Re Driffield Gas Light Co [1898] 1 Ch 451 Re GKN Sports Club [1982] 1 WLR 775 CASES CITED : Glazier Holdings Pty Ltd v Australian Men's Health Pty Ltd (unreported, NSWC, 30 April 1998) Metcalf v Permanent Building Society (1993) 10 WAR 145 Nugent v Nugent [1908] 1 Ch 546 Re St Andrews Allotment Association [1969] 1 WLR 229 Tierney v Tough [1914] IR 142 Vine v Raleigh (1883) 24 ChD 238 DECISION : Refer paragraph 42
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