off market transfers: what the judge said, page-2

"238 I do not accept the suggestion that the transactions and the put option are analogous to s 172 of the Property Law Act 1958 (Victoria). BMC invokes the common law principles that underlie s 172 of the Property Law Act 1958. BMC alleges that ASI is seeking to divest itself of potential liabilities to avoid meeting them and by a means that ensures that the liabilities will not be met. I do not see any unconscionable or impropriety in such conduct. If it is the case, as it is suggested, that the units will not be valued in the market for an amount equal to or more than the second instalment on and after 29 April 2009 when the second instalment will be paid by the unit holders or the underwriters, then it is in the commercial interest of a current unit holder to avoid by legal means, if it can, becoming liable to pay the instalment.

239 The BrisConnections Project relies on many parties making rational commercial decisions in their own interests to make a profit. It does not rely on any person undertaking any publicly spirited actions of charity. The project is a commercial venture. It may not be in the commercial interests of current unit holders to remain unit holders on 29 April 2009, I do not see anything improper in unit holders taking legal steps to ensure they are not registered unit holders on 29 April 2009.

240 BMC relies on principles of equity, which themselves rely on unconscionability. Why is it unconscionable for a unit holder, whose investment in the project is currently valueless, takings steps to avoid wasting more money on the project, if that be the case? Perhaps it might be said that others have relied on the current unit holder paying the instalments and have altered their position to their advantage on such reliance. None of the existing unit holders have represented, however, that they will remain unit holders on 29 April 2009 or that they will ensure the second payment is made. The other contracting parties in the BrisConnections Project took the risk that the project may not be successful, if that be the case, and that existing unit holders may seek to cease being unit holders on 29 April 2009. The evidence establishes that institutions who held substantial numbers of units in the unit trusts disposed of these units some time ago and that the current unit holders include many who were not aware of the liability attached to the units when they acquired them. On the limited submissions that were made, I do not find any matter in s 172 of the Property Law Act 1958 that is relevant to the just and equitable claim."