Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd trading as trustee of the Aurora Australasia Investment Fund Unit Trust [2024] NSWSC 1054

Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd trading as trustee of the Aurora Australasia Investment Fund Unit Trust [2024] NSWSC 1054

Aurora was contractually entitled to the performance fee and its units were validly issued; the written Loan Agreement governs repayment and precludes oral terms, so the loans are not presently due; Mr Driver's email of 14 July 2023 created an equitable charge over the relevant units held in Aurora's name in favour of Hartley and AMHP; the trustee is restrained from processing redemption requests for those units without consent or court order, to prevent defeating the equitable charge.

Parties
Plaintiff / First Cross Defendant: Aurora Australasia Pty Ltd; First Defendant / Second Cross Defendant: Hunt Prosperity Pty Ltd; Second Defendant / First Cross Claimant: AMHP Pty Ltd; Second Cross Claimant: Adam Hartley; Third Cross Defendant: David Driver
Jurisdiction
Australia
Judgment Date
23 August 2024
Procedural Posture
Principal Judgment / Post Trial Decision
Outcome
Declarations as to beneficial ownership and an equitable charge, injunction restraining trustee from processing redemption request, further directions for submissions and liberty to apply.
Legal Topics
Equitable Charge, Loan Agreement, Unit Trust, Beneficial Ownership, Performance Fee, Redemption Request, Breach of Trust
Equity Contracts Trusts Equitable Charge Loan Agreement Unit Trust Beneficial Ownership Performance Fee +2 more

Case Brief

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Parties

Aurora Australasia Pty Ltd

Plaintiff / First Cross Defendant

Hunt Prosperity Pty Ltd

First Defendant / Second Cross Defendant

AMHP Pty Ltd

Second Defendant / First Cross Claimant

Adam Hartley

Second Cross Claimant

David Driver

Third Cross Defendant

Procedural Posture

Principal Judgment / Post Trial Decision

Legal Issues

  1. 1 Whether Aurora was entitled to the performance fee as Investment Manager
  2. 2 Validity of units issued to Aurora
  3. 3 When the loans are due and payable

Ratio Decidendi

Aurora was contractually entitled to the performance fee and its units were validly issued; the written Loan Agreement governs repayment and precludes oral terms, so the loans are not presently due; Mr Driver's email of 14 July 2023 created an equitable charge over the relevant units held in Aurora's name in favour of Hartley and AMHP; the trustee is restrained from processing redemption requests for those units without consent or court order, to prevent defeating the equitable charge.

Court Disposition

Declarations as to beneficial ownership and an equitable charge, injunction restraining trustee from processing redemption request, further directions for submissions and liberty to apply.

Orders

  • Declaration that David Driver is beneficial owner of Units in Certificate No 3.
  • Declaration that David Driver conferred an equitable charge over Units in favour of Adam Hartley and AMHP Pty Ltd.