Australian Securities & Investments Commission v GDK Financial Solutions Pty Ltd (in liq) & Ors [2010] FCA 710

Australian Securities & Investments Commission v GDK Financial Solutions Pty Ltd (in liq) & Ors [2010] FCA 710

On an objective construction of the purchase deed, having regard to its clear language and the surrounding circumstances, the deed effected a transfer from ZMB to Touma of all of ZMB's rights and entitlements in or arising out of the Mews Scheme, including any equitable interests or priority claims in relation to the Mews land and its proceeds; thus, ZMB was precluded from pursuing such claims independently.

Parties
Plaintiff: Australian Securities & Investments Commission; First Defendant: GDK Financial Solutions Pty Ltd (in liquidation) ACN 085 488 311; Second Defendant: Windsor Village Management Pty Ltd (in liquidation) ACN 088 339 913; Third Defendant: Western Retirement Village Management Pty Ltd (in liquidation) ACN 091 443 239; Fourth Defendant: The Mews Village Nominees Pty Ltd (in liquidation) ACN 091 526 224; Fifth Defendant: Peridon Management Pty Ltd (in liquidation) ACN 088 322 276; Sixth Defendant: Rosedale Village Nominees Pty Ltd (in liquidation) ACN 089 667 096; Seventh Defendant: Peter Hastings Warne; Eighth Defendant: Rental Fleets Australia Pty Ltd ACN 082 558 978; Ninth Defendant: John Montgomerie; Tenth Defendant: Andrew Reginald Yeo; Eleventh Defendant: Guiseppe De Simone; Twelfth Defendant: Seachange Management Pty Ltd ACN 091 443 211; Thirteenth Defendant: ZMB Australia Pty Ltd ACN 105 746 067; Fourteenth Defendant: Young Turks Pty Ltd ACN 005 872 122; Fifteenth Defendant: Touma Pty Ltd ACN 124 195 366
Jurisdiction
Australia
Judgment Date
08 July 2010
Procedural Posture
Civil / Determination of Separate Question on Construction of Deed
Outcome
The effect of the deed was that ZMB assigned to Touma the rights and entitlements claimed by ZMB in its notice of motion filed on 23 April 2009.
Legal Topics
Construction of Contracts, Assignment of Rights, Managed Investment Schemes, Priorities in the Distribution of Trust Assets
Contract Law Equity Corporations Law Construction of Contracts Assignment of Rights Managed Investment Schemes Priorities in the Distribution of Trust Assets

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Parties

Australian Securities & Investments Commission

Plaintiff

GDK Financial Solutions Pty Ltd (in liquidation) ACN 085 488 311

First Defendant

Windsor Village Management Pty Ltd (in liquidation) ACN 088 339 913

Second Defendant

Western Retirement Village Management Pty Ltd (in liquidation) ACN 091 443 239

Third Defendant

The Mews Village Nominees Pty Ltd (in liquidation) ACN 091 526 224

Fourth Defendant

Peridon Management Pty Ltd (in liquidation) ACN 088 322 276

Fifth Defendant

Rosedale Village Nominees Pty Ltd (in liquidation) ACN 089 667 096

Sixth Defendant

Peter Hastings Warne

Seventh Defendant

Rental Fleets Australia Pty Ltd ACN 082 558 978

Eighth Defendant

John Montgomerie

Ninth Defendant

Andrew Reginald Yeo

Tenth Defendant

Guiseppe De Simone

Eleventh Defendant

Seachange Management Pty Ltd ACN 091 443 211

Twelfth Defendant

ZMB Australia Pty Ltd ACN 105 746 067

Thirteenth Defendant

Young Turks Pty Ltd ACN 005 872 122

Fourteenth Defendant

Touma Pty Ltd ACN 124 195 366

Fifteenth Defendant

Procedural Posture

Civil / Determination of Separate Question on Construction of Deed

Legal Issues

  1. 1 Whether the deed between ZMB Australia Pty Ltd and Touma Pty Ltd effected an assignment of all rights and entitlements claimed by ZMB in its notice of motion filed on 23 April 2009
  2. 2 Whether the deed's terms included a transfer of ZMB's claimed equitable interests and priority entitlements in assets of the scheme

Ratio Decidendi

On an objective construction of the purchase deed, having regard to its clear language and the surrounding circumstances, the deed effected a transfer from ZMB to Touma of all of ZMB's rights and entitlements in or arising out of the Mews Scheme, including any equitable interests or priority claims in relation to the Mews land and its proceeds; thus, ZMB was precluded from pursuing such claims independently.

Court Disposition

The effect of the deed was that ZMB assigned to Touma the rights and entitlements claimed by ZMB in its notice of motion filed on 23 April 2009.

Orders

  • The separate question is answered: The effect of the deed was that ZMB assigned to Touma the rights and entitlements claimed by ZMB in its notice of motion filed on 23 April 2009.
  • ZMB (thirteenth defendant) pay the costs of the seventh defendant in relation to the separate question.