TRUSTEES EXECUTORS LTD V PERPETUAL TRUST LTD HC AK CIV 2012-404-3569

TRUSTEES EXECUTORS LTD V PERPETUAL TRUST LTD HC AK CIV 2012-404-3569

Because the Torchlight advances had been repaid the immediate need for security orders was negated, but the court retained jurisdiction to protect investor confidence and oversee the process of internalisation and winding up; accordingly the court continued the appointment of Observers, preserved existing undertakings, required Perpetual to provide detailed proposals for winding up the Mortgage Fund and for internalisation of the Cash Fund within specified timeframes, adjourned the s49 application for substantive hearing, and imposed a timetable for resolution of costs with the clear direction that any costs charged to Perpetual must be met from its general assets and not from the Funds.

Citation
openlaw-4453de99_d4d4_4180_8554_e680e813eac5.pdf
Parties
Plaintiff / Statutory Supervisor: Trustees Executors Ltd; Defendant / Fund Manager: Perpetual Trust Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 August 2012
Procedural Posture
Application Under S 49 Securities Act 1978 / Interlocutory (application for Interim Orders and Directions)
Outcome
Interlocutory orders made: Observers continued; undertakings preserved and expanded; Perpetual ordered to provide winding up and internalisation proposals; s49 application adjourned; costs timetable ordered
Legal Topics
Statutory Supervision, S49 Securities Act 1978, Observer Appointment, Internalisation of Fund, Fund Winding Up, Confidentiality, Costs Allocation
Securities Law Trust Law Corporate Law Financial Regulation Statutory Supervision S49 Securities Act 1978 Observer Appointment Internalisation of Fund +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 10 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Trustees Executors Ltd

Plaintiff / Statutory Supervisor

Perpetual Trust Ltd

Defendant / Fund Manager

Procedural Posture

Application Under S 49 Securities Act 1978 / Interlocutory (application for Interim Orders and Directions)

Legal Issues

  1. 1 Whether interlocutory s49 relief was required given repayment of the Torchlight advances
  2. 2 Scope and role of court‑appointed Observers and interaction with statutory supervisor powers
  3. 3 Whether supervision should continue after intended internalisation of the Cash Fund

Ratio Decidendi

Because the Torchlight advances had been repaid the immediate need for security orders was negated, but the court retained jurisdiction to protect investor confidence and oversee the process of internalisation and winding up; accordingly the court continued the appointment of Observers, preserved existing undertakings, required Perpetual to provide detailed proposals for winding up the Mortgage Fund and for internalisation of the Cash Fund within specified timeframes, adjourned the s49 application for substantive hearing, and imposed a timetable for resolution of costs with the clear direction that any costs charged to Perpetual must be met from its general assets and not from the Funds.

Court Disposition

Interlocutory orders made: Observers continued; undertakings preserved and expanded; Perpetual ordered to provide winding up and internalisation proposals; s49 application adjourned; costs timetable ordered

Orders

  • Continue appointment of Ms Vivian Fatupaito and Mr Christopher Duffy as Observers on terms set out in judgments of 12 and 24 July 2012, pending further order or agreement
  • Existing undertakings given to Trustees Executors and the Financial Markets Authority on 9 July 2012 and to the Court on 12 July 2012 continue pending further order or earlier agreement