HIGH COURT OF AUSTRALIA AN SECURITIES & INVESTMENTS COMMISSION...

HIGH COURT OF AUSTRALIA AN SECURITIES & INVESTMENTS COMMISSION
First Respondent FILED 3 1 JAN 2014

First issue: Did the Constitution of the Fund authorise the appellant to distribute the shares in ARL to the unit holders of the Fund?

Do these arguments by ASIC:

"...11. Accordingly, unit holders, neither individually nor through any collective mechanism sanctioned by the Fund Constitution nor the Act, consented to the
transfer to them of shares in ARL or to the corresponding decrease in assets held on trust for them in the Fund.

12. It also follows that, as to a substantial part of the assets of the Fund (equivalent to 41% by value), the unit holders of the Fund went from being members of a listed managed investment scheme involving a trust operated by the appellant as responsible entity and subject to the duties imposed by Ch 5C of the Act, to being members of an unlisted company under the control of different people, and this without any specific agreement on their part or even consultation with them..... "

53 Fourthly, the difficulties with the appellant's construction of cl 13.1 identified at [38] -[52] above apply equally to its construction of cl 13.2.5. For the reasons there set out, cl 13.2.5 should not be construed as permitting an in specie distribution of scheme property to unit holders."
http://www.hcourt.gov.au/assets/cases/s275-2013/Wellington_Res1.pdf

Measure up against this coercion by:

WELLINGTON CAPITAL LIMITED ACN 114 248 458
Appellant

"20 - present case, of a power confen•ed (sic HC # 10136154) upon the appellant to transfer shares. In each case, even those persons who may not wish to become members of the company at the time of the transfer have already assented by reason of their purchase of the relevant investment and consequent agreement to be bound by the applicable terms. "

Dated: 31 January 2014

The good Judge better stay clear on this one of J. "Doubtsett’s" black notebook !