Trio Capital Limited (Admin App) v ACT Superannuation Management Pty Ltd & Ors [2010] NSWSC 286

Trio Capital Limited (Admin App) v ACT Superannuation Management Pty Ltd & Ors [2010] NSWSC 286

Schemes were wound up on the just and equitable ground due to the insolvency of the responsible entity (Trio), fraudulent loss and likely irremediable dissipation of funds (particularly from superannuation sources), the inherent improvidence and dysfunction of the schemes, absence of any willing replacement responsible entity, and overwhelming public interest in protecting investors and ensuring a speedy investigation and asset realisation.

Parties
Plaintiffs: Stephen James Parbery, Neil Singleton & Nicholas Martin in their capacity as Joint and Several Administrators of Trio Capital Limited (Administrators appointed) and others as defined in the schedule; First Defendant: ACT Superannuation Management Pty Ltd; Second Defendant: Millhouse IAG Private Equity Fund (represented by Z. Rocksandic); Third Defendants: R. & E. Thornton, trustees for Raid Provident Fund and representing ARP Growth Fund; Fourth Defendants: G. & K. Kolsky, representing Asttar Portfolio Service; Fifth Defendant: Silverhall Holdings Pty Ltd, representing MARQ Capital Diversified Property Fund; Sixth Defendant: Huntley Management Pty Ltd, responsible entity of MillhouseIAG Private Equity Fund
Jurisdiction
Australia
Judgment Date
16 April 2010
Procedural Posture
Application for Winding Up Managed Investment Schemes / Judgment on Application
Outcome
Schemes wound up on just and equitable ground.
Legal Topics
Winding Up, Just and Equitable Ground, Public Interest, Insolvency
Corporations Law Equity Managed Investment Schemes Winding Up Just and Equitable Ground Public Interest Insolvency

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Parties

Stephen James Parbery, Neil Singleton & Nicholas Martin in their capacity as Joint and Several Administrators of Trio Capital Limited (Administrators appointed) and others as defined in the schedule

Plaintiffs

ACT Superannuation Management Pty Ltd

First Defendant

Millhouse IAG Private Equity Fund (represented by Z. Rocksandic)

Second Defendant

R. & E. Thornton, trustees for Raid Provident Fund and representing ARP Growth Fund

Third Defendants

G. & K. Kolsky, representing Asttar Portfolio Service

Fourth Defendants

Silverhall Holdings Pty Ltd, representing MARQ Capital Diversified Property Fund

Fifth Defendant

Huntley Management Pty Ltd, responsible entity of MillhouseIAG Private Equity Fund

Sixth Defendant

Procedural Posture

Application for Winding Up Managed Investment Schemes / Judgment on Application

Legal Issues

  1. 1 Whether the five managed investment schemes should be wound up on the just and equitable ground under s 601ND(1)(a) of the Corporations Act 2001 (Cth)
  2. 2 Whether public interest supports the winding up of schemes where there is fraud, insolvency, or inherent improvidence

Ratio Decidendi

Schemes were wound up on the just and equitable ground due to the insolvency of the responsible entity (Trio), fraudulent loss and likely irremediable dissipation of funds (particularly from superannuation sources), the inherent improvidence and dysfunction of the schemes, absence of any willing replacement responsible entity, and overwhelming public interest in protecting investors and ensuring a speedy investigation and asset realisation.

Court Disposition

Schemes wound up on just and equitable ground.

Orders

  • Orders made pursuant to s 601ND(1)(a) Corporations Act 2001 (Cth) that the five managed investment schemes for which Trio Capital Limited (Administrators Appointed) was responsible entity be wound up.