Trading Trusts—Oppression Remedies: Consultation Paper (html)

Questions

1 In your view, what roles do the intention of the settlor and the law of contract play in unit trusts?

2 How relevant or important is the characterisation of a beneficiary or unitholder’s interest?

3 Is there another, more appropriate definition of ‘trading trust’? Could it include managed investment schemes?

4 Are oppression remedies appropriate for all trading trusts?

5 Are there circumstances in which an oppression remedy might be appropriate for beneficiaries of a discretionary trust?

6 How well has the oppression remedy worked to protect shareholders?

7 In your view, does the existing oppression remedy apply to trading trusts? If not, should it?

8 Do you agree with the reasoning in Kizquari?

9 Justice Young in Kizquari treats the values of shares and the value of units as entirely separate matters. Do you agree with this approach?

10 Which approach to section 232 do you consider preferable, Acting Justice Windeyer’s or Justice Davies’?

11 Do you agree with Justice Davies’ interpretation of the purposive approach?

12 Do you agree with Justice Davies’ interpretation of section 53?

13 Do you agree with Justice Ferguson’s approach of treating the whole group as one entity?

14 Even under the more liberal approach adopted in Vigliaroni and Drapac, in order to claim an oppression remedy, the plaintiff needs to be both a member/shareholder and a beneficiary. Is this appropriate and desirable?

15 Do you agree with Justice Ferguson’s use of the ‘quasi-partnership’ doctrine as set out in Ebrahimi?

16 Do you agree that Arhanghelschi demonstrates the fundamental importance of the trust deed and/or unitholder agreement?

17 Are there any circumstances in which termination under the trust deed could provide a satisfactory remedy to minority beneficiaries?

18 Can the doctrine of estoppel assist a unitholder in redeeming their interest on more favourable terms than provided for in the trust deed?

19 How much does the rule in Saunders v Vautier underpin the provisions of the Trustee Act 1958 (Vic)?

20 Can relief under the Trustee Act 1958 (Vic) provide an effective alternative remedy for oppression of minority shareholders?

21 Could seeking an order under the inherent jurisdiction of the court provide an alternative remedy for minority shareholders?

22 In your view, can the ‘quasi-partnership’ approach adopted in Ebrahimi apply to trading trusts? If so, can a beneficiary obtain a remedy other than the winding up of the trust?

23 Are there circumstances in which the doctrine of fraud on power could provide a useful remedy to minority beneficiaries?

24 Has the lack of a clear oppression remedy for minority beneficiaries of a trading trust caused substantive injustice or hardship? If possible, please give examples.

25 Is legislative reform to provide oppression remedies to minority beneficiaries in Victoria justified?

26 Could new remedies under the Trustee Act coexist with those under the Corporations Act?

27 If the Trustee Act is amended to provide oppression remedies, should this be supplemented by a Corporations legislation displacement provision?

28 Should the Trustee Act 1958 (Vic) be amended to provide oppression remedies for minority beneficiaries?

29 If so, to what extent should the provisions reflect those in Part 2.1F of the Corporations Act?

30 Should the orders available to the court be specified, or left to what the court ‘considers appropriate’ as in section 233 of the Corporations Act?

31 Section 233 of the Corporations Act provides a non-exhaustive list of examples of the types of order available. Should a similar list be included in any amendment to the Trustee Act?

32 What effect should the trust deed have on the availability of any oppression remedies included in the Trustee Act? Should it be possible to exclude their operation by express provisions in the trust deed?

33 Should such a provision apply to all trusts? If not, which types of trusts should be covered?

34 Are there any alternative legislative reforms that, in your view, should be considered to protect the rights of oppressed beneficiaries?

35 Would the introduction of statutory oppression remedies for beneficiaries of trading trusts affect the interests of directors or trustees? If so, how?

36 Would the introduction of statutory oppression remedies for beneficiaries of trading trusts affect the interests of creditors? If so, how?

37 Would the introduction of statutory oppression remedies for beneficiaries of trading trusts affect the interests of employees? If so, how?