Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd

Supreme Court of NSW|2024-05-29|Before: Hammerschlag CJ

Introduction

This is an application for judicial advice brought under s 63 of the Trustee Act 1925 (NSW) (the Act).
References below to sections are, unless otherwise stated or the context indicates differently, to sections of the Act.
Section 63(1)-(2) provides: 63 Advice (1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument. (2) If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee's own responsibility, to have discharged the trustee's duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.
It will be observed that various parties are designated by reference to their citation in proceedings. This is because, whilst this is a free-standing application for judicial advice, it is made in the context of pending proceedings (the proceedings) between various persons and entities with an interest in the outcome. The nature and status of the proceedings will be described later.

The Information Memorandum

By Information Memorandum issued on 25 August 2022 (the IM), Hunt Prosperity offered investment in the Fund to wholesale investors. The IM discloses that the First Plaintiff in the proceedings (Aurora) is the Investment Manager of the Fund and that the minimum investment is $1,000,000.00. Aurora was incorporated on 11 August 2022. The IM (para 9.6) refers to an Investment Management Agreement and describes its operation, but it seems that no such formal agreement was ever entered into.
I interpolate that, from the inception of the Fund, Aurora appears nevertheless to have acted as its Investment Manager, until its appointment was terminated as described later.
The IM describes the objective of the Fund as: The Investment Manager will seek to generate returns greater than 2.5% per month after all expenses. The Investment Manager may not be successful in meeting this investment objective and returns are not guaranteed.
The IM describes the Fund's investment strategy as: The Fund intends to use the expert skills of a Special International Fund Trader with a proven track record of more than a decade. The International Fund Trader has a suite of diversified strategies to achieve the target returns.
In a section headed 'Management Structure', the IM identifies the Investment Committee as consisting of, David Driver (Driver), director and co-founder, Adam Hartley (Hartley), co-founder, and Hunt, Head of Operations. Driver is described as a proven successful businessman with over 30 years of experience within the corporate world, and Hartley is described as a highly successful industrial/residential property developer and overall businessman with over 25 years of experience. Of Hunt, it says, amongst other things, that he has been a financial advisor for over 20 years and a director/adviser to high net-worth individuals, businesses, and multinational clients. He is a highly experienced accountant.
Driver is the sole director of Aurora and holds one half of its shares on issue. Hartley's company, the Second Defendant/First Cross-Claimant in the proceedings (AMHP), holds the other half.
I will refer to Driver and Aurora collectively as the Driver interests, and to Hartley and AMHP collectively as the Hartley interests.
By all accounts, the creation of the Fund was the result of the collaborative efforts of Hunt, Hartley and Driver, who agreed to establish a unit trust with a view to investing in foreign currency trading. The idea was that Driver would locate the currency traders and the platform, and the others would provide investment funds. The Trustee would be established and controlled by Hunt, and Aurora would be the Investment Manager.
Profits would be shared as to one third to:

Hartley and Driver;
the currency traders; and
those who held a stake in the project going forward (i.e. the unitholders from time to time).

One of the expert currency traders ultimately retained was Cody Burgat (Burgat) who lives in the United States. The Trust also used the services of a broker, Pepperstone.

Issue of Units

Investors made applications to Hunt Prosperity and upon subscribing their investment funds, were issued with Unit Certificates.
Aurora holds two certificates, nos 3 and 4, for units in the Trust. They are dated 1 November 2022 and each covers 258,284 fully paid units in the Trust. The circumstances under which these units were issued to Aurora are controversial. The IM (para 6.2) states that the Fund will charge a performance fee of one-third of the realised profits. It seems that for each month between September 2022 and August 2023, Hunt Prosperity calculated "performance fees" equivalent to one-third of the realised profits on trading for that month which its records reflect as being payable to Aurora. The fees were not withdrawn by Aurora but treated by Hunt Prosperity as having been reinvested by Aurora in the Fund. It seems that the units covered by certificates nos 3 and 4, were issued to reflect this "reinvestment".
The Hartley interests assert that these units were wrongly issued to Aurora because there was no written Investment Management Agreement regulating any entitlement to them and, in any event, Aurora did not earn them because it did not perform any services which would have entitled it to them.
There are presently 71,447,037 units on issue. It is not in contest that the Hartley interests hold 80% of them.

Relationships Fracture

The Driver interests and the Hartley interests have fallen out.
The Driver interests and the Hartley interests have fallen out with Hunt Prosperity.
On this application, however, the Driver interests and the Hartley interests are allied against Hunt Prosperity.
As to the rift between the Driver interests and the Hartley interests, it would seem that there are two separate, but related, root causes for the souring.
First, Driver borrowed $7,500,000 from Hartley and apparently has not repaid it. In May 2022, Driver borrowed $1,500,000 from Hartley to fund legal proceedings in this Court in which he is embroiled, which concern an investment in an enterprise called Botanical Water Technologies. The expectation was that Driver would favourably settle the case and repay Hartley from the settlement. Subsequently, Driver borrowed further money to enable him to complete on the acquisition of two real properties. By mid-July 2023, tensions had intruded into their relationship because of Driver's failure to repay. There was an exchange of correspondence between Driver and Trent James de Wit (de Wit), Hartley's business partner, on behalf of Hartley. Formal loan documentation was prepared but not executed. As is referred to below, Hartley is now suing Driver for repayment.
On 11 August 2023, Hartley wrote to Hunt Prosperity referring to concerns of unitholders regarding Driver's integrity and recent actions. Hartley said that they wished to change the Investment Manager to Aurora Capital and Investment Pty Ltd (Aurora Capital). Aurora Capital is associated with de Wit.
On 16 August 2023, Hunt Prosperity, in writing, terminated Aurora's "appointment" with immediate effect. The letter signed by Hunt gave no reasons for the termination.
Whether Aurora Capital was then appointed or acted as the Investment Manager is not (on the material before me) clear. However, on 2 May 2024, de Wit swore an affidavit saying that he does not consider that Aurora Capital was appointed by Hunt Prosperity as Investment Manager to replace Aurora in that capacity from August 2023.
Second, on 26 October 2023 Driver made, and then on 29 November 2023 repeated, a redemption request for all the units covered by certificate no 3. Hunt Prosperity, he asserts, at the urging of Hartley, has not redeemed.
Driver says, amongst other things, that from at least August 2023, Hunt Prosperity has acted contrary to its duties as Trustee and has been acting under the control or influence of Hartley and de Wit. He asserts that Hartley is doing this to exert pressure on Driver to the repay the loan. He asserts that Hunt Prosperity has allowed itself to be used as Hartley's instrument to exert pressure on him and that such pressure includes stalling and avoiding redeeming certificate no 3.
As to the rift between both of them and Hunt Prosperity, Driver's complaints include the conduct described immediately above and a complaint that Hunt Prosperity gave Aurora information as to the worth of its units which was much lower that what Driver thought they were worth, going on information earlier provided. This came about, he says, because the Hunt Prosperity failed to disclose that the performance of the Trust was being determined without taking into account unrealised losses on open foreign exchange contracts. Hartley's complaints include an alleged failure by Hunt Prosperity properly to manage the Trust.
I offer no commentary on the merits or otherwise of these controversies. It suffices to say that they are part of the backdrop to the present application for judicial advice.

Performance of the Fund

The Fund has not performed well, although, it seems initially it did trade profitably.
As at 31 March 2024, the Fund was carrying unrealised losses in the form of open foreign exchange contracts for difference exceeding $27,000,000. Total equity in the Fund's investments had declined from around $18,000,000 as at 31 December 2023, to around $13,000,000 as at 31 March 2024. However, in an Affidavit sworn on 29 May 2024, Hunt estimates the net value of the Fund as at 30 April 2024 as $12,972,113, he says that the net value has improved since 30 April 2024 and estimates it at 28 May 2024 to be approximately $14,921,982.
Hunt has expressed the view that the prospect of the Fund trading out of its present position to a point approaching the objective described in the IM of returns exceeding 2.5% per month is, at best, very unlikely and uncertain. He has provisionally formed the view that the best course of action is to terminate the Fund and distribute the remaining capital to the investors after expenses.
Hunt says that from approximately November 2022, de Wit was closely involved in the day-to-day operations of the Fund, reviewed the monthly income distribution statements prepared by Hunt Prosperity and discussed the trading strategy of the Fund via email with Burgat.

THe Proceedings

On 19 December 2023, Aurora sued out of the Court a Summons citing Hunt Prosperity as Defendant and claiming: 1 An order that the Defendant do all things necessary to facilitate the payment to the Plaintiff of the amount payable by the Defendant to the Plaintiff consequent upon the Plaintiff having made the redemption request dated 29 November 2023 in respect of Unit 3 in the Aurora Australasia Investment Fund Unit Trust (Unit Trust). 2 Further or in the alternative to order 1, an order that the Defendant be removed as trustee of the Unit Trust under section 6 and/or section 70 of the Trustee Act 1925 (NSW). (I take the reference to Unit 3 to be a reference to the Units covered by certificate no 3)
The Summons was initially given a return date of 12 February 2024. Aurora, however, on 30 January 2024, filed an Amended Summons (presumably with leave) joining AMHP as second defendant. At the request of AMHP, the matter came before me, ex parte, sitting as Duty Judge on 1 February 2024. AMHP sought leave to bring a cross-claim against Aurora, Hunt Prosperity and Driver, which leave I granted (reserving to the cross-defendants liberty to apply for revocation). I also made an order restraining Hunt Prosperity from redeeming certificates nos 3 and 4, pending determination of the proceedings or until further order. I stood the proceedings over to 5 February 2024 before Slattery J.
On 5 February 2024, the matter came before Slattery J. His Honour granted AMHP leave to amend its Cross-Summons and extended the injunction until 6 February 2024. An Amended Cross-Summons citing AMHP and Hartley as cross-claimants was filed that day. On 6 February 2024, Slattery J heard argument on the continuation of the injunction. His Honour reserved judgment and ordered the continuation of the injunction.
On 2 February 2024, Hunt Prosperity filed a Notice of Motion seeking judicial advice on whether it was justified in defending the proceedings and in declining to pay the redemption request until final determination of the proceedings. On 6 March 2024, Hunt Prosperity filed a Notice of Motion seeking expedition of its motion.
On 5 March 2024, the matter came before, Rees J, the expedition judge, who adjourned it to 8 March 2024, in the Expedition List.
On 7 March 2024, AMHP and Hartley brought a cross-claim claiming: 1. that Aurora was not validly appointed as Investment Manager and was not entitled to management fees; 2. that Aurora has no entitlement to receive the redemption proceeds of its certificates, alternatively, that it has charged any right, title or interest it holds in the Trust in favour of AMHP and Hartley; 3. delivery up and cancellation of Aurora's certificates; and 4. judgment against Driver for $7,500,000.
Also on that date, Aurora filed a Notice of Motion for expedition of the proceedings. When the matter came before Rees J on 8 March 2024, Her Honour gave various directions including for the filing and service of pleadings, and for the expedition of Hunt Prosperity's Notice of Motion for judicial advice.
On 22 March 2024, Her Honour ordered that: (a) The Trustee is justified in declining to process or pay the redemption request dated 29 November 2023 until final determination of these proceedings constituted by the Amended Summons and the Amended Cross Summons. (b) The Trustee is justified in defending the Amended Summons and the Amended Cross Summons and incurring proper legal and other expenses in doing so.
On 5 April 2024, Her Honour made orders expediting the proceedings, and listed the matter for hearing on 13-16 May 2024. Those hearing dates were later vacated, and the matter is now listed for hearing on 10 and 16-18 July 2024.
On 13 May 2024 (with leave), Aurora filed an Amended Statement of Claim seeking: 1 An order that the First Defendant do all things necessary to facilitate the payment to the Plaintiff of the amount payable by the First Defendant to the Plaintiff consequent upon the Plaintiff having made the redemption request dated 29 November 2023 in respect of Unit 3 in the Aurora Australasia Investment Fund Unit Trust (Unit Trust). 2 An order that the First Defendant be removed as trustee of the Aurora Australasia Investment Fund Unit Trust under section 6 and/or section 70 of the Trustee Act 1925 (NSW). 3 An order that the First Defendant pay the Plaintiff's costs of these proceedings and not recover its own costs of the proceedings out of the assets of the trust (and replenish the trust to the extent it has used the assets of the trust to meet it costs). 4 Damages caused by the termination of the Plaintiff as Investment Manager, in an amount to be determined by way of subsequent hearing or report and inquiry in the event liability is established.
On 14 May 2024, Hunt Prosperity filed the Notice of Motion presently before me.
On 17 May 2024, Her Honour listed the motion for hearing before me on 29 May 2024.

THE JUDICIAL ADVICE APPLICATION

Against this background, Hunt Prosperity seeks judicial advice whether, as Trustee, it: 1. is justified in exercising its power under clause 21.1 of the Trust Deed to amend the Trust Deed by replacing the words "three months" in clause 22(b) with the words "seven days"; and 2. is justified in exercising its power under clause 22(b) of the Trust Deed, amended as contemplated by paragraph 1, to determine that the Fund is to be terminated on a date at least seven days after the date of the provision of notice of such termination to all unitholders and to realise the assets of the Trust and distribute the net proceeds in accordance with clause 23 of the Trust Deed.
In addition, Hunt Prosperity seeks an order under s 95 [1] for payment into Court of the proceeds attributable to certificate no 3.
Hunt Prosperity also seeks an order that its costs incurred in relation to the application be paid out of the Trust on an indemnity basis.
The application is supported by a Statement of Facts dated 13 May 2024. It is appropriate to set it out in full: 1. Hunt Prosperity Pty Ltd (the Trustee) is the trustee of the Aurora Australasia Investment Fund Unit Trust (the Trust) constituted by a trust deed dated 25 August 2022 (the Trust Deed). The Trustee is the First Defendant and the Second Cross-Defendant in the present proceedings (Proceedings). 2. The Plaintiff/First Cross-Defendant, Aurora Australasia Pty Ltd (Aurora), is the holder of the units under Unit Certificate 3 (Certificate 3) issued in the Trust. 3. The application form for the issue of units in the Trust forms part of an information memorandum. 4. The unitholders of the fund who deposited capital to the fund received the information memorandum and signed the application form prior to being issued with a unit certificate 5. It is clear from the information memorandum that the Trust's objective is to be achieved by a management structure that comprises both a specialist international fund trader and an investment manager. The role of the investment manager is integral to the purpose of the fund. The investment manager has an important risk management function. 6. The Trustee has recently come to understand that the investment manager of the Trust, Aurora Capital and Investment Pty Ltd, does not consider itself to have been appointed as the investment manager. 7. The Trustee notified the associates of Aurora Capital and Investment Pty Ltd that the Trustee was concerned about the lack of an investment manager. 8. Aurora Capital and Investment Pty Ltd has not notified the Trustee that its understanding referred to in paragraph 6 is incorrect. 9. The Trustee has made enquiries to find a replacement investment manager for the Trust. The Trustee has been unable to find a replacement investment manager. 10. Mr de Wit, the sole director of Aurora Capital and Investment Pty Ltd, prepared a summary that showed that as at 31 March 2024 the fund was carrying unrealised losses in the form of open foreign exchange contracts for difference exceeding $27 Million. 11. The summary showed that the total equity in the Trust's investments had declined from around $18 million as at 31 December 2023 to around $13 million as at 31 March 2024. 12. The Trustee has provisionally determined that it would be appropriate to exercise the Trustee's power of amendment under clause 21.1 of the Trust Deed to amend the Trustee Deed so that the trustee may determine a date on which the Trust is to be terminated, which may be a date at least seven days (rather than three months) after the provision of notice of such termination to all unitholders. 13. The Trustee has provisionally formed the view that the purpose of the Trust has become impracticable to achieve and that the Trust should be wound up.
Additionally, Hunt swore a series of Affidavits, as did Hartley, Driver and de Wit, to which was exhibited voluminous documentation which was tendered and received into evidence on the footing that the material serves to provide the context in which this application is being made.
As well, Hunt Prosperity relied on a written opinion from Counsel dated 13 May 2024.

Hunt Prosperity

As will be observed from the Statement of Facts (and as further emerged from the written and oral submissions made on its behalf), Hunt Prosperity urges upon the Court the somewhat restricted approach that the Trust should be terminated in the very short term because and only because: 1. it has made losses and its chances of successfully trading out are, at best, very unlikely and uncertain, and bringing the Trust to an end on short notice will achieve certainty in the overall interest of the unitholders; 2. the proposed structure of the Fund, as disclosed in particular by the IM, included the participation of an Investment Manager. There is now no Investment Manager and Hunt Prosperity has been unable to find one; 3. Hunt Prosperity has formed the provisional view that the purpose of the Trust has become impracticable to achieve; 4. terminating the Trust will avoid the risk of future losses because all open trading positions will be closed out; and 5. terminating the Trust may narrow the issues in the proceedings and Hunt Prosperity may have a much-reduced role to play in them.

The Driver Interests

The Driver interests argue that the Court should decline to exercise its discretion to give judicial advice because: 1. the application must be seen against the background of the wider dispute in which Aurora is suing Hunt Prosperity for breach of duty as Trustee and in which Hunt's removal as Trustee is sought and there is a challenge to the efficacy of certificates nos 3 and 4; 2. the application is a "contrivance" devised to protect Hunt Prosperity from the complaints against it which are soon to be litigated in the Court, amongst others, by bringing about a position where there is no Trustee to pursue claims against Hunt Prosperity on behalf of the Trust; and 3. terminating the Trust necessarily involves closing out all the open foreign exchange contracts, a matter in respect of which it is not appropriate for Hunt Prosperity to seek the Court's "pre-emptive approval" because it involves "complex commercial issues and matters of business judgment," and Hunt Prosperity is not in a position properly to make that judgment and should not be permitted to make it anyway where an application to remove it as Trustee is imminently to be determined. They also point out that Hunt's view that the purpose of the Trust has become impractical to achieve, is expressed to be provisional only.

The Hartley Interests

The Hartley interests take a similar position to that taken by the Driver interests in relation to this application.
They argue that: 1. the real purpose of the application is for Hunt Prosperity to "rid itself" of the potential claims in the proceedings and that the shortening of the termination period sought by it is to "collapse the business" before the pending trial; 2. it is not the case that the objectives of the Trust cannot be achieved without an Investment Manager and the Trust has operated without one; 3. the Fund's fiscal position is not such that there is no alternative to immediate winding up because there are several options available for continued trading (including relying on certain algorithms which are available); 4. Hunt Prosperity has not, or has not adequately, canvassed the views of unitholders; and 5. the Hartley Interests account for 80% of the beneficial interest in the Trust, they oppose the winding up and weight should be given to their position.

DECISION

In Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 (Macedonian Church) at 95 [79], the High Court observed (citing, for part of the observation, what had been said by Palmer J at first instance) that: It is very common in judicial advice applications for the court to be invited to give advice on the basis of facts, whether proved by affidavit […] or alleged in a "written statement" or "other material" […] which are contested and controversial [and may be] founded upon facts stated to the Court by the trustee, untested by adversarial procedure, and assumed by the Court to be true […] only for the purpose of the application.
In Beck v Henley (2014) 11 ASTLR 457; [2017] NSWCA 201 at [90], Leeming JA observed that it is not necessary for the Court to determine factual matters on an application for judicial advice.
In this application, there are heavily contested factual matters which it is neither appropriate, nor indeed practically possible, to resolve.
Section 63 is undoubtedly facultative, but judicial advice is not there simply for the asking: see for example Re Estate Law Chow Cho-Poon; Application for judicial advice (2013) 10 ASTLR 251; [2013] NSWSC 844 at [198] (Lindsay J); In the application of NSW Trustee & Guardian (2014) 12 ASTLR 513; [2014] NSWSC 423 at [25] (Kunc J).
Every application depends on its own facts and is essentially a matter for the discretion of the judge who hears it: Macedonian Church at [76].
I have been unable to discern any good reason why the Court should exercise its discretion to give the advice sought. To the contrary, I consider there to be not less than ten reasons for the Court not doing so.
First, the narrow approach urged on the Court by Hunt Prosperity would require the Court to give advice based on some seemingly simple propositions but divorced from the reality of critical context in which those propositions must be seen in order to be properly understood. Adopting such an approach would enhance the prospect that any protection which Hunt Prosperity might obtain under s 63(2) would be illusory because it will have been based on less than complete data. It would also enhance the prospect that a claim by Hunt Prosperity to protection under the section would spawn further litigation. These are not propitious circumstances in which to give the judicial advice sought.
Second, and whilst it is not necessary to conclude that the application is a contrivance, it is self-evidently brought to have an impact on the determination of the issues in the trial shortly to be heard by Rees J by reducing Hunt Prosperity's role. Hunt Prosperity's own submissions say as much. It is also self-evident from the timing of this application and Hunt Prosperity's seeking to shorten the termination period. This can only be to reduce its possible exposure. I do not consider this to be a basis upon which Hunt Prosperity can appropriately have any claim to the exercise of the Court's discretion in its favour.
Third, any decision on whether the open foreign exchange contract positions should be closed in the interests of the unitholders as a whole, involves complex business issues and sophisticated specialised judgment. Even if it were appropriate for the Court on this application to attempt an assessment of what is the right decision on closing out - which I think it is not - the material available to the Court would not enable it to do so.
Fourth, Hunt Prosperity is itself not in a position competently to make that assessment either. Indeed, that it is not, is one of the bases on which the present application rests. On the other hand, the Hartley interests, which have 80% of the equity in the Fund, supported by the Driver interests, do not wish the Trust to be terminated (with the inevitable consequence that all positions will be closed out). Those interests are not unsophisticated in business. Significant weight should be given to their views as to what is in the interests of the unitholders as a whole, especially in the absence of any countervailing view from other unitholders.
Fifth, under Hunt Prosperity's aegis, the Fund has operated for some time without formal appointment of an Investment Manager, and its performance in the immediate past has yielded a profit.
Sixth, whilst closing out the positions would stem any further losses, it would also eliminate any opportunity of further profit.
Seventh, even if closing out the positions would be to the advantage of the unitholders as a whole, it does not follow that terminating the Trust would be.
Eighth, I am unpersuaded that, even if terminating the Trust were appropriate, it would be in the interests of the unitholders as a whole that this occur within a period shorter than that provided in the Trust Deed.
Ninth, Hunt Prosperity has taken no steps towards retiring as Trustee, which it has an option to do. To the contrary, it is opposing its removal. In the controversial circumstances of this application, I do not consider that any termination of the Trust should be other than strictly in accordance with the Trust Deed unamended. I observe that the Driver interests and the Hartley interests indicated that they would not oppose such a retirement.
Tenth, whilst it is not necessary to determine whether the views of other unitholders have properly been canvassed, none has appeared to support Hunt Prosperity.
The result is that I am unpersuaded that it is in the interests of the unitholders as a whole that the Trust be terminated at this time.
The question of payment into Court does not arise.

CONCLUSION

The Notice of Motion filed 14 May 2024 is dismissed.
Any party who wishes to make a submission as to costs must do so within seven days of this judgment by notifying the other parties and my Associate in writing what orders are sought and stating briefly the basis upon which they are sought. I will then give directions, as necessary, for the determination of costs.
The exhibits may be returned.

Endnote

Trustee Act 1925 (NSW) s 95 provides, where trustees or the majority of trustees have in their hands or under their control money or securities belonging to a trust, they may pay them into court.

Amendments 04 June 2024 - Updated Parties on Coversheet 04 June 2024 - Fixed typo in [71] 05 June 2024 - Amended the Solicitors on the Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2024

Trustee Act 1925(NSW)ss 63(1)-(2), s 95

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