TFML Ltd v MacarthurCook Fund Management Ltd [2013] NSWCA 291

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: TFML Ltd v MacarthurCook Fund Management Ltd [2013] NSWCA 291 Hearing dates: 4 and 5 April 2013; Written submissions 16 April 2013 Decision date: 03 September 2013 Before: McColl JA at [1]; Macfarlan JA at [2]; Meagher JA at [3] Decision: (1) Appeal allowed. (2) Orders 1, 2 and 3 made by the Court below on 17 August 2012 set aside. (3) Claims of the first and second respondents against the appellant dismissed. (4) First and second respondents pay the appellant's costs of the proceedings in the Court below and of the appeal. (5) Cross-appeal allowed. (6) Judgment for the cross-appellants against the second cross-respondent in the sum of $17,332,229, that judgment to take effect on 17 August 2012. (7) No order between the second cross-respondent and the cross-appellants as to the costs of the proceedings in the Court below and of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CORPORATIONS - managed investment schemes - unlisted unit trust - terms on which units subscribed for provided for redemption after 12 months - whether that redemption a withdrawal from scheme to which Pt 5C.6 of the Corporations Act 2001 (Cth) applied - whether subscription agreement itself satisfied those requirements - whether s 601KB(3) requires that before making any withdrawal offer responsible entity must identify existing assets of scheme available to meet withdrawal requests