Abacus Funds Management [2005] NSWSC 1309

Abacus Funds Management [2005] NSWSC 1309

It is appropriate for the trustee to issue the explanatory and overview documents to members, and to proceed on the basis that the proposed amendments to the trust constitutions are within the scope of the powers of alteration, as provided by the constitutions and s 601GC(1)(a), given the wide amendment powers and established practice in stapling proposals. Any argument that these amendments are outside power is unsustainable on the materials and authorities presented.

Jurisdiction
Australia
Judgment Date
12 December 2005
Procedural Posture
Application for Judicial Advice / Advice Given at First Instance
Outcome
Judicial advice given. Directions made and orders granted as per the short minutes of order.
Legal Topics
['managed Investments' 'stapled Securities' 'trustee Judicial Advice' 'power of Amendment' 'calling of Unit Holder Meetings']
['corporations Law' 'trusts Law' 'equity'] ['managed Investments' 'stapled Securities' 'trustee Judicial Advice' 'power of Amendment' 'calling of Unit Holder Meetings']

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Procedural Posture

Application for Judicial Advice / Advice Given at First Instance

Legal Issues

  1. 1 ['Whether the trustee is justified in issuing meeting documents for a proposal to further staple existing stapled securities' 'Whether proposed amendments to trust deeds are within the power of alteration conferred by the trust constitutions and the Corporations Act 2001 (Cth)' 'Whether the Gambotto principle is relevant to the proposal, especially in light of differential treatment of foreign unit holders']

Ratio Decidendi

It is appropriate for the trustee to issue the explanatory and overview documents to members, and to proceed on the basis that the proposed amendments to the trust constitutions are within the scope of the powers of alteration, as provided by the constitutions and s 601GC(1)(a), given the wide amendment powers and established practice in stapling proposals. Any argument that these amendments are outside power is unsustainable on the materials and authorities presented.

Court Disposition

Judicial advice given. Directions made and orders granted as per the short minutes of order.

Orders

  • ['Advice given that the applicant is justified in issuing the overview documents and explanatory memorandum to unit holders as proposed.' 'Advice given that the applicant is justified in proceeding on the basis that the proposed amendments to the trust constitutions are within power.' 'Orders 1, 2 and 3 made in the...