BTA Institutional Services Australia Ltd & BNY Trust (Australia) Registry Ltd [2009] NSWSC 1294

BTA Institutional Services Australia Ltd & BNY Trust (Australia) Registry Ltd [2009] NSWSC 1294

The Security Trustee is empowered to remove and replace managers under the various trust documents upon receiving instructions from the majority financiers (or other relevant parties as specified in the deeds), and such power is exercisable in respect of each series and not solely in respect of all series collectively. However, removal does not take effect until a replacement manager has been identified and approved in accordance with the requirements of the relevant deed (approval by majority or all financiers/facility agents, as stipulated). Where the deed does not provide the Security Trustee with independent removal power (e.g., Financing Deed – VH-VQZ), the Security Trustee cannot...

Jurisdiction
Australia
Judgment Date
26 November 2009
Procedural Posture
Application for Judicial Advice (trustees) / Final Judgment Judicial Advice and Orders as to Costs
Outcome
Judicial advice given as to interpretation and powers of Security Trustees; order as to costs made.
Legal Topics
['judicial Advice to Trustees' 'removal and Replacement of Manager' 'construction of Trust Deeds' 'powers and Duties of Trustees' 'interpretation of Trustee Act 1925 (nsw)']
['equity' 'trusts and Trustees'] ['judicial Advice to Trustees' 'removal and Replacement of Manager' 'construction of Trust Deeds' 'powers and Duties of Trustees' 'interpretation of Trustee Act 1925 (nsw)']

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Procedural Posture

Application for Judicial Advice (trustees) / Final Judgment Judicial Advice and Orders as to Costs

Legal Issues

  1. 1 ['Whether Security Trustees may remove and replace a manager under various trust documents upon instructions of majority financiers or other relevant parties' 'Whether the removal and replacement operates per series or must be in respect of all series' 'Whether the requirement for approval of a replacement manager is a condition precedent to removal taking effect' 'Proper construction of notice and approval provisions, and powers under Ireland Master Trust Deed']

Ratio Decidendi

The Security Trustee is empowered to remove and replace managers under the various trust documents upon receiving instructions from the majority financiers (or other relevant parties as specified in the deeds), and such power is exercisable in respect of each series and not solely in respect of all series collectively. However, removal does not take effect until a replacement manager has been identified and approved in accordance with the requirements of the relevant deed (approval by majority or all financiers/facility agents, as stipulated). Where the deed does not provide the Security Trustee with independent removal power (e.g., Financing Deed – VH-VQZ), the Security Trustee cannot...

Court Disposition

Judicial advice given as to interpretation and powers of Security Trustees; order as to costs made.

Orders

  • ['If the Security Trustee were to receive instructions from the Majority Financiers in a series to do so, it would be acting in accordance with its powers under the Master Trust Deed – 2006 in removing AAFL as manager in respect of that series and approving a proposed replacement, but removal not effective until...