Australian Securities & Investments Commission v Perpetual Trustee Company (Canberra) Limited [2000] FCA 1726

Australian Securities & Investments Commission v Perpetual Trustee Company (Canberra) Limited [2000] FCA 1726

The Deed of Indemnity, including clause 6, was not taken by Perpetual for the benefit of the beneficiaries of the Capital Property Trust and did not impose on Perpetual an obligation to sue the Snow interests and CPC rather than have recourse to the assets of the Capital Property Trust. The surrounding documents and events, including the later investment proposals, were inconsistent with ASIC's contention, and the Capital Property Trust was the party ultimately responsible for the stamp duty and related legal costs. ASIC's claims therefore failed, making it unnecessary to determine Perpetual's defences or contingent cross-claims.

Jurisdiction
Australia
Judgment Date
29 November 2000
Procedural Posture
Application Pursuant to Corporations Law S 1324(10) for Damages in Substitution for the Grant of an Injunction, With Cross Claims / Final Hearing After Remitter; Reasons for Judgment and Orders
Outcome
Application and cross-claims dismissed; costs reserved for argument.
Legal Topics
['construction of Deed of Indemnity' 'trustee Indemnity' 'stamp Duty Assessment' 'use of Trust Assets for Duty and Legal Costs' 'cross Claims Contingent on Liability']
['contract' 'trusts' 'corporations' 'taxation'] ['construction of Deed of Indemnity' 'trustee Indemnity' 'stamp Duty Assessment' 'use of Trust Assets for Duty and Legal Costs' 'cross Claims Contingent on Liability']

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Procedural Posture

Application Pursuant to Corporations Law S 1324(10) for Damages in Substitution for the Grant of an Injunction, With Cross Claims / Final Hearing After Remitter; Reasons for Judgment and Orders

Legal Issues

  1. 1 ['Whether, on the true construction of the Deed of Indemnity dated 14 June 1989 and in the events which happened, Perpetual was obliged to enforce clause 6 against Terrence Mark Snow, George Robert Warwick Snow and Capital Property Corporation Pty Limited rather than seek recourse from the assets of the Capital Property Trust.' 'Whether clause 6 of the Deed of Indemnity was taken for the benefit of the beneficiaries of the Capital Property Trust.' 'Whether Perpetual was entitled to indemnity from the assets of the Capital Property Trust for legal costs incurred in relation to the stamp duty assessment and related proceedings.' "Whether it was necessary to determine Perpetual's pleaded defences and cross-claims if ASIC's principal claim failed."]

Ratio Decidendi

The Deed of Indemnity, including clause 6, was not taken by Perpetual for the benefit of the beneficiaries of the Capital Property Trust and did not impose on Perpetual an obligation to sue the Snow interests and CPC rather than have recourse to the assets of the Capital Property Trust. The surrounding documents and events, including the later investment proposals, were inconsistent with ASIC's contention, and the Capital Property Trust was the party ultimately responsible for the stamp duty and related legal costs. ASIC's claims therefore failed, making it unnecessary to determine Perpetual's defences or contingent cross-claims.

Court Disposition

Application and cross-claims dismissed; costs reserved for argument.

Orders

  • ['The application and the cross-claims be dismissed.' 'Costs reserved for argument.']