9 September time-line

Posted on 8 November 2013  by Martin Clark Uni Melbourne blog

The High Court has agreed to hear an appeal against the decision of the FCAFC in ASIC v Wellington Capital Ltd. Wellington sold a portion of a managed investment scheme to a listed company, ARL, in return for the entire issued share capital of ARL, which were then distributed in specie to unit holders of the fund in proportion to their holdings. ASIC contended that the fund’s constitution did not authorise Wellington to transfer its assets to unit holders, and sought declaratory and other relief. Clause 13 of the constitution outlined Wellington’s powers, including an authorisation to deal with the fund’s property as if it were the absolute and beneficial owner, rather than merely a trustee. Disagreeing with the primary judge and Wellington’s arguments, that authorisation did not extend to Wellington’s dealings with the unit holders, and holding that it did would violate the trust relationship between those parties. The FCAFC also rejected Wellington’s arguments that it held general company powers under s 124 of the Corporations Act 2001 (Cth) to distribute property among members (allegedly the unit holders). Finally, cl 13 could not be construed to confer a power on Wellington to make an in specie distribution. The FCAFC unanimously allowed ASIC’s appeal and granted the declaratory relief sought. The Court is set to hear the appeal on 9 September 2014.

	Column 1	Column 2	Column 3
0	High Court Judgment
1	Result
2	High Court Documents	Wellington v ASIC
3	Full Court Hearing		9 September 2014
4	Special Leave Hearing	[2013] HCATrans 281	8 November 2013
5	Appeal from FCAFC	[2013] FCAFC 52	28 May 2013
6	Trial Judgment, FCA	[2012] FCA 1140	17 October 2012