So this is not one of those cases where a common but unwisely used form of words is in question. Next, we come to the question of what might be called commercial significance in managed investment schemes. We know that there are degrees of liquidity in assets of a kind that are under management in such schemes. If they are liquid, clause 16, as your Honours know, provide for a capital distribution, willy-nilly as it happens; that is, no question of consent of the recipients. They have consented, as it were, because that is the scheme of managing their investment which they undertake by purchasing units. So if it is liquid it can be distributed by reason of the provisions that your Honours will have seen discussed, found at the application book page 110 at about line 10:
any additional amount (including capital –
et cetera. That determination, of course, requires there to be cash able to be distributed. That, in turn, requires if there be not sufficient cash at the time, liquidation, so we are left with relatively illiquid assets not being able to be dealt with by 16. One asks, does this provide, then, a scheme which on its face lacks the flexibility to permit dealing with assets which are not or not wisely or prudently to be converted into cash by way of distribution?
In our submission, one goes back then to the terminology of the powers one sees on page 104 and 105, to which we have drawn attention upon which we relied, and it is plain that they are words of such amplitude that unless the thing were not legally possible, that is, the transfer of the legal title, by in specie distribution, then these are words which twice, that is in each of these provisions, capture the possibility.
GAGELER J: The question is whether somebody who is a unit holder can wake up one morning and find themselves a shareholder.
OCV
octaviar limited
