MacarthurCook Fund Management v Zhaofeng Funds Management [2012] NSWSC 1368

MacarthurCook Fund Management v Zhaofeng Funds Management [2012] NSWSC 1368

The interests of justice required continuation of the stay because the undertakings offered by TFML were sufficient, so far as possible, to preserve the trust assets in substantially their present state and value pending the appeal, the plaintiffs did not contend that delay in receiving the judgment sum would cause irreparable hardship, and refusal of the stay was likely to have a significant adverse impact on approximately 800 other unit holders by forcing the illiquid trust into administration or winding up.

Jurisdiction
Australia
Judgment Date
02 November 2012
Procedural Posture
Application for Stay Pending Appeal / After Judgment Entered for the Plaintiffs Against TFML and After TFML Appealed; Application to Continue a Stay Previously Ordered on Conditions
Outcome
Stay continued on undertakings.
Legal Topics
['stay Pending Appeal' 'enforcement of Judgment' 'security for Judgment Debt' 'registered Managed Investment Scheme' 'interests of Unit Holders' 'undertakings to Preserve Assets']
['civil Procedure' 'corporations' 'trusts and Managed Investment Schemes'] ['stay Pending Appeal' 'enforcement of Judgment' 'security for Judgment Debt' 'registered Managed Investment Scheme' 'interests of Unit Holders' 'undertakings to Preserve Assets']

Case Brief

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Procedural Posture

Application for Stay Pending Appeal / After Judgment Entered for the Plaintiffs Against TFML and After TFML Appealed; Application to Continue a Stay Previously Ordered on Conditions

Legal Issues

  1. 1 ['Whether the stay pending appeal should be continued where the promised registered second mortgage security could not be provided because the bank did not consent' "Whether continuing the stay would adversely impact the plaintiffs' rights under their judgment beyond deferring enforcement" 'Whether refusing to continue the stay would significantly adversely affect other unit holders in the P-REIT Trust' 'Whether the interests of justice favoured continuation of the stay on undertakings']

Ratio Decidendi

The interests of justice required continuation of the stay because the undertakings offered by TFML were sufficient, so far as possible, to preserve the trust assets in substantially their present state and value pending the appeal, the plaintiffs did not contend that delay in receiving the judgment sum would cause irreparable hardship, and refusal of the stay was likely to have a significant adverse impact on approximately 800 other unit holders by forcing the illiquid trust into administration or winding up.

Court Disposition

Stay continued on undertakings.

Orders

  • ['Upon the second defendant giving to the Court by Senior Counsel undertakings 1 to 11 first offered to the Court on 31 August 2012, the stay granted on that day and from time to time continued be continued until determination of the appeal or further order of the Court.' 'Liberty reserved to apply to a judge of...