NSW Supreme Court

Re AUSCOAL Superannuation atf the Mine Superannuation Fund [2024] NSWSC 32

Appeared for the trustee of Mine Super, instructed by Mills Oakley.

Successful application pursuant to s 63 of the Trustee Act 1925 (NSW) for the Court’s opinion, advice or direction as to the administration and management of Mine Super and merger with TWUSuper.

Heard by Robb J (sitting as Equity Duty Judge) between 6 and 17 November 2023.

Judgment:

Media coverage:

Nature's Care Holdings v Chen [2024] NSWSC 14

Appeared for Nature’s Care Group, instructed by Clifford Chance.

Successful interlocutory injunction in support of claim for breaches of fiduciary duty involving former directors and officers of a vitamin manufacturer and exporter.

Heard by Rees J on 22 and 23 January 2023, sitting as Vacation Judge.

Judgment:

Media coverage:

abrdn Australia Ltd & abrdn Asia PLC (NSWSC Proceeding No. 2023/00185684)

Appeared for the abrdn Group, instructed by Minter Ellison.

Successful application for consent pursuant to s 249E of the Crimes Act 1900 (NSW) to the offering, receiving, giving and soliciting of financial benefits as part of a change in responsible entity across the Australian fund book of global investment managers abrdn Australia and its Singapore parent company abrdn Asia, comprising 10 registered managed investment schemes and $1.5 billion funds in management.

Heard by Rees J on 20 June 2023 (judgment unreported).

Media coverage:

,

Re Energy Industries Superannuation Scheme [2022] NSWSC 1202

,

Appeared for trustee, instructed by Dentons.

Successful application for judicial advice.

EQUITY — Trusts and trustees — Judicial advice under s 63 of the Trustee Act 1925 (NSW) — Whether trustee may insert amendments to trust deed of superannuation fund to give power to charge fee — Where capital reserve sought to enable trustee to meet potential liabilities from recent changes to regulatory environment

Also acted in relation to regulatory investigations by the Australian Securities and Investments Commission and the Australian Prudential Regulation Authorities, instructed by Dentons.

Judgment:

Media coverage:

Re SCS Super Pty Limited atf Australian Catholic Superannuation and Retirement Fund [2022] NSWSC 686

Appeared for the trustee, instructed by Minter Ellison.

Successful application for judicial advice.

EQUITY –Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – Where proposed amendment to Trust Deed to give trustee power to insert trustee remuneration clause – Where application responds to recent changes to legal and regulatory environment and is sought to enable trustee to meet potential liabilities against it and its directors – Where trustee is not-for-profit company with nominal capital – Whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee.

Judgment:

Re NGS Super [2021] NSWSC 1694

Appeared for trustee of Non-Government Schools superannuation scheme, instructed by Minter Ellison.

Successful application for judicial advice.

EQUITY – Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – where proposed amendments to trust deed of industry superannuation fund give trustee power to be paid and retain remuneration – where amendments sought to enable trustee to meet potential liabilities against it and its directors – where trustee is not-for-profit company with nominal capital – where trust deed contains existing remuneration power – whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee

Judgment:

Media coverage:

In re DSHE Holdings Limited [2021] NSWSC 608

Appeared for the deed administrators McGrath Nicol, instructed by Norton Rose Fulbright.

Successful application for termination of DOCA and administrator’s remuneration.

CORPORATIONS — deed of company arrangement — scope of power under s 90-15 of the Insolvency Practice Schedule — application for orders to facilitate the deregistration of the company without any intervening winding up — orders refused

CORPORATIONS — deed of company arrangement — orders terminating the deed of company arrangement — orders under s 447A of the Corporations Act 2001 (Cth) modifying the operation of the winding up regime created by s 446AA in relation to reporting to creditors

CORPORATIONS — deed of company arrangement — remuneration of deed administrator – where the remuneration claimed exceeds the total creditors’ claims

Judgment:

In re Ovato Print Group (application for scheme of arrangement)

Advising the Commonwealth, instructed by Norton Rose Fulbright.

By its implementation of the scheme established by the Fair Entitlements Guarantee Act 2012 (Cth), the Commonwealth Government provides financial assistance to eligible employees who lose their job due to the liquidation of their employer. The underlying public policy objective of the FEG Scheme is for it to constitute a safety net scheme of last resort for eligible, redundant workers.

These proceedings raised potentially significant public policy implications in the interplay between schemes of arrangement proposed pursuant to sections 411 and 413 of the Corporations Act 2001 (Cth) and the implementation of the FEG Scheme, particularly in the context of the fiscal support provided by the Commonwealth Government to corporate Australia during the COVID-19 pandemic. Whilst the Court recognised the novel nature of the interplay between the Ovato Schemes and the FEG Scheme, ultimately the Commonwealth did not oppose the application for approval of these schemes of arrangement, and the Court decided not to refuse to approve the Ovato Schemes on public policy grounds.

For further information, see NRF’s note and the judgments of Black J following the initial Convening Hearing and final Sanction Hearing.

Contact Clerk (Sarah Tiffen): Email: clerk@5wentworth.com Phone: +61 2 8066 6111 Urgent Assistance: +61 416 697 853