Everest Capital Limited as Trustee of the EBI Income Fund v Trust Company Limited & Ors [2010] NSWSC 231

Reported Decision : 77 ACSR 371

New South Wales Supreme Court

CITATION : Everest Capital Limited as Trustee of the EBI Income Fund v Trust Company Limited & Ors [2010] NSWSC 231

HEARING DATE(S) : 10-11 March 2010

JUDGMENT DATE : 12 March 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 12 March 2010

DECISION : Direct counsel for the parties to bring in short minutes of order in accordance with reasons.

CATCHWORDS : TRUSTS – trust not a registered managed investment scheme under Corporations Act – trust deed incorporated by reference Corporations Act, Part 2G.4 – trust deed allowed trustee to voluntarily retire and appoint new trustee – trust deed empowered unitholders to direct trustee to retire on unanimous resolution – trustee also a unitholder and appointed custodian to hold units – validity of unitholder's requisition for meeting – resolutions purported to remove trustee and appoint new trustee – unitholders had no power to remove trustee as distinct from directing trustee to retire – trustee ceases to hold office when delivers deed of retirement not on unitholders' direction to retire – inappropriate resolution does not render requisition invalid – trustee to amend resolution to conform to direction to retire – meeting requisition invalid because not made by registered unitholder – trustee not estopped from disputing validity of resolution – trustee not required to convene meeting pursuant to invalid requisition – trustee not entitled to vote by virtue of Corporations Act, s 253E incorporated into trust deed – trustee's custodian prohibited from voting by s253E because associate of trustee and s16(1)(a) does not apply – resolution to direct trustee to retire need be passed unanimously only by vote of unitholders attending and entitled to vote – unitholders have no power to appoint new trustee – trustee entitled to appoint new trustee if directed to retired