Trading Trusts—Oppression Remedies: Report (html)
Appendices
A. Submissions
1. Professor Matthew Conaglen, University of Sydney Law School
2. Peter Agardy, Victorian Bar
3. Professor Elise Bant and Associate Professor Matthew Harding, University of Melbourne Law School
4. Federal Court of Australia
5. Commercial Bar Association of Victoria
6. Cornwall Stodart and Ari Bergman
7. Institute of Legal Executives (Victoria)
B. Consultations
1. Professor Ian Ramsay, University of Melbourne Law School
2. Ari Bergman
3. The Hon. Robert Austin, Senior Legal Consultant, Minter Ellison Lawyers
C. Participants in roundtable, 11 June 2014
The Hon. Robert Austin (by phone)
Professor Elise Bant
Susan Barkehall-Thomas
Ari Bergman
Elisabeth Boros
Eve Brown on behalf of the Financial Services Council (by phone)
Professor Michael Bryan
Professor Matthew Conaglen
Daniel Crennan
John Glover
Associate Professor Matthew Harding
Ian Hardingham QC
Albert Monichino QC
Michael Shand QC
Carolyn Sparke QC
D. Existing legislative provisions in other jurisdictions
Business Trusts Act (Singapore, cap 30, 2008 rev ed)
Remedies in cases of oppression or injustice
41.
1. Any unitholder or any holder of a debenture of a registered business trust may apply to the court for an order under this section on the ground —
(a) that the affairs of the registered business trust are being conducted by the trustee-manager of the registered business trust, or the powers of the directors of the trustee-manager of the registered business trust are being exercised, in a manner oppressive to one or more of the unitholders or holders of debentures of the registered business trust including himself or in disregard of his or their interests as unitholders or holders of debentures of the registered business trust; or
(b) that some act of the trustee-manager of the registered business trust, carried out in its capacity as trustee-manager of the registered business trust, has been done or is threatened or that some resolution of the unitholders or holders of debentures of the registered business trust or any class of them has been passed or is proposed which unfairly discriminates against or is otherwise prejudicial to one or more of the unitholders or holders of debentures of the registered business trust (including himself).
2. If on such application the court is of the opinion that either of the grounds referred to in subsection (1) is established, the court may, with a view to bringing to an end to or remedying the matters complained of, make such order as it thinks fit and, without prejudice to the generality of the foregoing, the order may —
(a) direct or prohibit any act or cancel or vary any transaction or resolution;
(b) regulate the conduct of the affairs of the trustee-manager of a registered business trust in relation to the registered business trust in future;
(c) authorise civil proceedings against the directors of the trustee-manager of the registered business trust to be brought in the name of or on behalf of all the unitholders of the registered business trust as a whole by such person or persons and on such terms as the court may direct;
(d) provide for the purchase of the units in or debentures of the registered business trust by other unitholders or holders of debentures of the registered business trust;
(e) provide that the registered business trust be wound up; or
(f) provide that the costs and expenses of and incidental to the application for the order are to be raised and paid out of the trust property of the registered business trust or to be borne and paid in such manner and by such persons as the court deems fit.
3. Where an order under this section makes any alteration in or addition to the trust deed of any registered business trust, then, notwithstanding anything in any other provision of this Act but subject to the provisions of the order, the trustee-manager of the registered business trust concerned shall not have power, without the leave of the court, to make any further alteration in or addition to the trust deed that is inconsistent with the provisions of the order; but subject to the foregoing provisions of this subsection the alterations or additions made by the order shall have the same effect as if duly made by special resolution of the unitholders of the registered business trust.
4. A copy of any order made under this section shall be lodged by the applicant with the Authority within 7 days after the making of the order.
5. Any person who contravenes subsection (4) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 and, in the case of a continuing offence, to a further fine not exceeding $1,000 for every day or part thereof during which the offence continues after conviction.
6. This section shall apply to a person who is not a unitholder of a registered business trust but to whom units in the registered business trust have been transmitted by operation of law as it applies to the unitholders of a registered business trust; and references to a unitholder or unitholders shall be construed accordingly.
Canada Business Corporations Act RSC 1985, c C-44
241.
(1) A complainant may apply to a court for an order under this section.
Grounds
(2) If, on an application under subsection (1), the court is satisfied that in respect of a corporation or any of its affiliates
(a) any act or omission of the corporation or any of its affiliates effects a result,
(b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or
(c) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly regards the interests of any security holder, creditor, director or officer, the court may make an order to rectify the matters complained of.
Powers of court
(3) In connection with an application under this section, the court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing,
(a) an order restraining the conduct complained of;
(b) an order appointing a receiver or receiver-manager;
(c) an order to regulate a corporation’s affairs by amending the articles or by-laws or creating or amending a unanimous shareholder agreement;
(d) an order directing an issue or exchange of securities;
(e) an order appointing directors in place of or in addition to all or any of the directors then in office;
(f) an order directing a corporation, subject to subsection (6), or any other person, to purchase securities of a security holder;
(g) an order directing a corporation, subject to subsection (6), or any other person, to pay a security holder any part of the monies that the security holder paid for securities;
(h) an order varying or setting aside a transaction or contract to which a corporation is a party and compensating the corporation or any other party to the transaction or contract;
(i) an order requiring a corporation, within a time specified by the court, to produce to the court or an interested person financial statements in the form required by section 155 or an accounting in such other form as the court may determine;
(j) an order compensating an aggrieved person;
(k) an order directing rectification of the registers or other records of a corporation under section 243;
(l) an order liquidating and dissolving the corporation;
(m) an order directing an investigation under Part XIX to be made; and
(n) an order requiring the trial of any issue.
Duty of directors
(4) If an order made under this section directs amendment of the articles or by-laws of a corporation,
(a) the directors shall forthwith comply with subsection 191(4); and
(b) no other amendment to the articles or by-laws shall be made without the consent of the court, until a court otherwise orders.
Exclusion
(5) A shareholder is not entitled to dissent under section 190 if an amendment to the articles is effected under this section.
Limitation
(6) A corporation shall not make a payment to a shareholder under paragraph (3)(f) or (g) if there are reasonable grounds for believing that
(a) the corporation is or would after that payment be unable to pay its liabilities as they become due; or
(b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities.
Alternative order
(7) An applicant under this section may apply in the alternative for an order under section 214.
Law Reform Commission (Australia) and Companies and Securities Advisory Committee, Collective Investments: Other People’s Money, ALRC Report
No 65 (1993)
Remedy in cases of oppression etc. – collective investment schemes
260AQ.
(1) The Court may, on application by an investor in a collective investment scheme or by the Commission, make an order under this section in relation to the scheme if it finds:
(a) that:
(i) the affairs of the scheme are being conducted in a way that is; or
(ii) an act or omission, or a proposed act or omission, by or on behalf of the scheme operator was or would be; or
(iii) a resolution, or a proposed resolution, of a meeting of investors or of a class of investors in the scheme was or would be;
oppressive or unfairly prejudicial to, or unfairly discriminatory against, 1 or more investors (the ‘oppressed investor or investors’), whether as investor or otherwise; or
(b) that the scheme is being conducted in a way that is contrary to the interests of the investors as a whole.
(2) The Court may make such orders as are just. Some examples of the kinds of orders that the Court can may are:
(a) an order that the scheme be terminated;
(b) an order for regulating the conduct of affairs of the scheme in the future;
(c) an order amending the constitution of the scheme;
(d) an order for the redemption of interests of any of the investors;
(e) an order requiring the scheme operator to buy specified interests in the scheme from an investor;
(f) an order directing the scheme operator to institute, prosecute, defend or discontinue specified proceedings;
(g) an order restraining a person from engaging in specified conduct or from doing a specified act or thing;
(h) an order requiring a person to do a specified act or thing.
(3) A person who has notice of an order that applies to the person must not knowingly contravene it.
(4) The Court must not make an order that the scheme be terminated if terminating it would unfairly prejudice the oppressed investor or investors.
(5) If an order amends the scheme’s constitution, then, despite anything else in this Law but subject to the order, the constitution is not capable of being further amended so that it is inconsistent with the amendment ordered unless the Court gives leave.
(6) If:
(a) 1 or more investors make an application under this section; and
(b) an office copy of the order disposing of the application made by the Court is not lodged with the Commission within 14 days after it is made;
the applicant, or each of the applicants, is guilty of an offence.
(7) This section and an order under this section have effect despite anything else in the scheme’s constitution or in this Law.
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