MacarthurCook Fund Management Limited -v- Zhaofeng Funds Limited [2012] NSWSC 911

Supreme Court New South Wales

Medium Neutral Citation: MacarthurCook Fund Management Limited -v- Zhaofeng Funds Limited [2012] NSWSC 911 Hearing dates: 9, 10 & 11 July 2012 Decision date: 10 August 2012 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: Judgment for the plaintiffs Catchwords: CORPORATIONS - Corporations Act 2001 (Cth) ("the Act") Ch 5C, Part 5C.3 and Part 5C.6 - managed investment schemes - CONTRACT - where member subscribes for units in a managed investment scheme on terms that the units will be redeemed by the responsible entity at a specific time - whether Pt 5C.6 of the Act applies to require the responsible entity to make a written withdrawal offer - if Pt 5C.6 applies, whether subscription contract was sufficient compliance with any such requirement - whether, in any event, the responsible entity was contractually bound to make such an offer - CORPORATIONS - Pt 5C.2 - where entity which is the responsible entity of a managed investment scheme purports to contract in its capacity as responsible entity and separately in its personal capacity and undertakes the obligation to purchase units which are not redeemed by it in its capacity as responsible entity - where change in responsible entity occurs - whether the obligation to purchase was in relation to the scheme and became the obligation of the new responsible entity - DAMAGES - claim for damages for failure to redeem or purchase units in breach of contract Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Yango Pastoral Company Pty Ltd v First Chicago Australia Limited (1978) 139 CLR 410 Maronis Holdings Ltd v Nippon Credit Australia Limited (1990) 2 ACSR 138 Secured Income Real Estate Australia (Ltd) v St Martins Investments Pty Ltd (1979) 144 CLR 596 Mackay v Dick (1880-81) 6 App Cas 251 Butt v McDonald (1896) 7 QLJ 68 Alghussein Establishment v Eton College [1991] 1 All ER 267 Brothers v Park [2004] ANZ Conv R 451 at [82] TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Upper Hunter Timbers Pty Ltd v Forestry Commission of New South Wales [1999] NSWCA 125 Upper Hunter Timbers Pty Ltd v Forestry Commission of New South Wales [2001] NSWCA 64 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 Jireh International Pty Ltd v Western Export Services Inc [2011] NSWCA 137 Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1 Huntley Management Ltd v Timbercorp Securities Ltd (2010) 79 ACSR 143 Minister Administering National Parks and Wildlife Act 1974 v Halloran (2004) 12 BPR 22,391 Category: Principal judgment Parties: MacarthurCook Fund Management limited (ACN) 004 956 558) - First Plaintiff Sandhurst Trustees Limited (ABN 16 004 030 737) - Second Plaintiff Zhaofeng Funds Limited (ABN 33 107 352 821) - First Defendant TFML Limited (ABN 39 079 608 825) -Second Defendant Representation: Counsel: A. Leopold SC with V.A. Thomas - Plaintiffs J.C. Kelly SC - Defendants Solicitors: Ashurst Australia - Plaintiffs Piper Alderman - Defendants File Number(s): 2010/117253