Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand

Judgment 1HER HONOUR : Before me for hearing on 30 May 2011 was an application by the plaintiff (Perpetual), as the responsible entity of two registered managed investment schemes (Perpetual's Monthly Income Fund, referred to as MIF, and Perpetual's Wholesale Monthly Income Fund, referred to as WMIF) seeking clarification in respect of judicial advice given on 9 March 2011 by White J pursuant to s 63 of the Trustee Act 1925 (NSW) in relation to the potential transfer of units from unitholders in each of the funds to Direct Share Purchasing Corporation Pty Investment (DSPC) ( Re Perpetual Investment Management Limited as responsible entity for Perpetual's Monthly Income Fund and Perpetual's Wholesale Monthly Income Fund [2011] NSWSC 133 ). 2White J, when delivering judgment on that judicial advice application, granted liberty to Perpetual and to DSPC to apply on reasonable notice to his Honour (whilst he was duty judge) and otherwise to the duty judge in relation to any question that might arise in relation to the implementation of the advice or otherwise as to costs. Perpetual has exercised that liberty to apply and now seeks clarification of the advice in light of what has happened since the giving of the judicial advice. On this application, DSPC was represented by Counsel (Mr Kerr) as was one individual unitholder (Mr Roberts) (by Mr Knackstredt of Counsel). 3At the commencement of the hearing of the application (which came before me in the duty list), a question was raised as to whether the question for clarification was one that would more appropriately be referred back to his Honour (notwithstanding the indication given by his Honour that questions as to the implementation of his advice could be referred to the duty judge). There was also a question as to whether, in any event, this was a matter of 'implementation' of his Honour's advice, as such, within the meaning of the liberty granted by his Honour. As to the latter, even if this not strictly be a question of implementation (and I note that it was put to me as a question of clarification, rather than implementation as such), it did not seem to be disputed that there would be power under s 63 of the Trustee Act to provide judicial advice by way of clarification of earlier orders (though Mr Kerr submitted that in this case the orders did not in fact require any such clarification). 4As to whether the matter should be referred to White J, I was informed by Counsel for Perpetual, Ms Barrett, that in fact an approach had been made to his Honour's associate and the matter had been referred to the duty list. Having heard Counsel on the issues to be raised in the present judicial advice application, I formed the view that it was appropriate for me to deal with the application for the following reasons (to which I adverted briefly during oral submissions). 5Whether or not, strictly so-called, this is a question of clarification or implementation, the meaning and operation of the Court's orders is a matter to be ascertained objectively. Thus, albeit in a different context (namely, when considering the operation of the 'slip rule') it has been said that it is the "objective intention of the Court at the time the original orders were made" that is relevant (see Newmont Yandal Operations Pty Ltd v J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195 per Spigelman CJ at [91] and [102]) (not the judge's subjective intention at the time, although that would not disqualify the judge in question from later ruling on the objective effect of his or her orders). 6In Newmont Yandal it was observed that the judge who made the Court's orders is overwhelmingly the preferable person to correct them (see [182] per Spigelman CJ) (though I emphasise that the question before me is not one of correction of any of his Honour's orders). By analogy, it might be thought that the judge who made the orders would also be the preferable person to clarify them. However, where the issue is as to the objective intention of the Court when the judicial advice and orders were made (as Newmont Yandal makes clear), I considered it appropriate (having regard to the statutory mandate for the just, quick and cheap resolution of the real issues before the Court), to proceed with the hearing of the judicial advice application in the duty list before me and I did so. 7At the outset, Mr Kerr made it clear that DSPC does not suggest that the advice now sought falls outside the ambit of s 63 of the Trustee Act (reliance having been placed by Ms Barrett on Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 for the touchstone being what is in the interests of the trust in that regard). (DSPC had submitted before White J that the court had no power to give directions under s 63 because the advice sought did not concern the management or administration of the trust property or the interpretation of the trust instrument. However, Mr Kerr accepts for the purposes of the present application that there is power to give the advice sought, even though it is to some extent hypothetical.) 8Briefly, the background to the present application (and that before White J) is that DSPC has made offers to unitholders in the respective Funds to acquire their units. It then submitted to Perpetual signed transfers in respect of various of the units in the funds. Those transfers (for the reasons outlined by his Honour) were invalid on the basis that they did not contain all the information required under the applicable regulations. His Honour found that it would have been an offence for Perpetual to register those transfers. 9His Honour was also asked to give some advice as to whether Perpetual would be justified in registering, or refusing to register, transfers that might in future be provided to it by DSPC in the circumstances there postulated. Perpetual's concern, as I apprehend it, was that having regard to the matters of which it had become aware following receipt of the original transfers (such as the fact that various of the elderly unitholders appeared not to have understood what they were signing or from whom the documentation had emanated) it wished to be certain as to whether or in what circumstances it would be justified in relying on any further transfers provided by DSPC (which, unlike the transfers then before it, might be compliant with the regulations). 10What has happened since the judicial advice was given is that various, if not all, unitholders have received communications both from DSPC and from Perpetual. 11DSPC has forwarded to Perpetual (in a number of tranches) new transfer forms (correcting the deficiency in the previous ones) in relation to various of the unitholders for whom transfer forms had previously been sent (Annexure A unitholders) as well as compliant transfer forms for other unitholders in respect of whom no forms had previously been sent (Annexure B unitholders). Letters (prepared by DSPC) containing a direction to Perpetual have been signed by the respective unitholders, in terms confirming the direction to proceed with the transfer. 12Perpetual had in the meantime sought confirmation directly from the Annexure A unitholders as to their intentions and has written to various other unitholders in relation to proposed transfers. It appears that there are now a number of relevant categories of unitholders: those for whom transfer forms were initially forwarded by DSPC to Perpetual and who have since executed Amended Transfer Forms (of whom some have since expressed confusion or otherwise disclaimed an intention to transfer their units, some have confirmed their intention to transfer units and others have done nothing to respond to Perpetual's queries; those who had not previously signed transfer forms but have now executed valid transfer forms and directions and have (again) either subsequently confirmed those instructions, or given an indication contrary to those instructions or simply not responded to Perpetual and others who might be described as being in a hybrid category (such as Mr Roberts who signed the initial invalid transfer and has been sent amended documentation but has not executed that documentation or Ms Medlow who has given inconsistent responses to Perpetual's enquiries as to whether she wishes to proceed with the transfer). There is at least one unitholder that has not responded to Perpetual at all but has signed successive transfer forms submitted to it by DSPC, together with the new direction (the Butlers). Questions on which judicial advice was sought from White J 13The questions on which advice was sought from his Honour (which are set out in full at [1] of his Honour's judgment) were, in essence: (a) Whether Perpetual would be justified in registering transfers of units to DSPC pursuant to transfer documentation executed by DSPC under powers of attorney granted by currently registered unitholders (Relevant Unitholders). (Pausing there, the definition of Relevant Unitholders in the orders does not seem to have been confined to those currently registered unitholders in respect of whom transfers had already been submitted - therefore I accept Mr Kerr's submission that the advice given in its terms equally addresses registered unitholders for whom no transfer documentation had been submitted at the particular time.) (b) Whether Perpetual would be justified in refusing to register transfers of units in the respective Funds to DSPC pursuant to transfer documentation executed by DSPC under powers of attorney granted by Relevant Unitholders. (c) In respect of the Relevant Unitholders, whether Perpetual would be justified in: i. distributing each Relevant Unitholder's proportionate share of income to each Relevant Unitholder; or ii. distributing each Relevant Unitholder's proportionate share of income to DSPC. (d) In respect of requests for redemption received from Relevant Unitholders after receipt by Perpetual of transfer documentation executed by DSPC under powers of attorney relating to the same units, whether Perpetual would be justified in: (i) redeeming the units and paying the redemption amounts to each Relevant Unitholder; or (ii) declining to redeem the units. (e) Whether Perpetual's costs and expenses incurred in connection with these proceedings should be paid out of the assets of the respective funds on an indemnity basis. 14The advice given by his Honour is set out at [82] of his Honour's reasons. Relevantly, White J advised as follows: (a) Perpetual would be justified in refusing to register the forms of transfer of units in the respective funds pursuant to the transfer documentation "executed by DSPC under powers of attorney granted by currently registered unitholders (Relevant Unitholders) that is contained in tabs 17-22 of the Bundle accompanying the Statement of Facts, exhibit A" [this being the advice flowing from the invalidity of the executed transfer documentation] (b) if, but only if, Perpetual receives transfers of units in the respective funds to DSPC pursuant to transfer documentation executed by DSPC under powers of attorney granted by Relevant Unitholders that comply with s 1071B of the Corporations Act 2001, it would be justified in registering such transfers in respect of those unitholders who have indicated to Perpetual that they wish the transfers to be registered ; (my emphasis) (c) Perpetual would be justified in refusing to register transfers of units in the funds to DSPC pursuant to such transfer documentation in respect of those unitholders who: (i) have not indicated to Perpetual whether or not they wish the transfers to be registered; or (ii) have indicated to Perpetual that they do not wish the transfers to be registered , (my emphasis) until ordered to do so by a court of competent jurisdiction. 15On 18 March 2011, a Notice of Intention to Appeal against the whole of the Judgment was filed on behalf of DSPC. 16The essence of the dispute between Perpetual and DSPC is now as to what is meant by an 'indication' by unitholders to Perpetual that they wish (or do not wish) transfers to be registered for the purposes of the operation of the advice in paragraph [82(c)] of his Honour's judgment. 17Mr Kerr submits that what his Honour's advice contemplated was no more nor less than an indication (such as a signed direction) that unitholders wished the transfers to be registered (without contemplating that Perpetual would enquire into the information each unitholder had in his or her possession or as to what were the driving factors for the directions of unitholders) and, in effect, that if Perpetual receives a direction procured by DSPC from a unitholder for the units to be transferred then Perpetual is not justified in requiring to register the transfer notwithstanding that the direction was procured by DSPC (and that it was not provided directly from the unitholder to Perpetual). Clarification of Judicial Advice now sought 18The clarification now sought by Perpetual of the judicial advice given by his Honour is as follows: (a) Whether, pursuant to paragraph 82(c) of the Judgment, Perpetual would be justified in continuing to refuse to register the transfers of units to DSPC in respect of currently registered MIF Unitholders identified in Annexure A (defined as Continuing MIF Unitholders with Units) who have, since the date of the Judgment, provided a document to DSPC purportedly directing Perpetual to register the transfer of units but have subsequently: (i) indicated to Perpetual that they do not wish to proceed with the transfer of their units to DSPC: or (ii) not responded to enquiries made by Perpetual seeking to ascertain whether or not they wish to proceed with the transfer of their units to DSPC. (b) Whether, pursuant to paragraph 82(c) of the Judgment, Perpetual would be justified in refusing to register the transfers of units to DSPC in respect of the currently registered MIF Unitholders identified in Annexure C (New MIF Unitholders) who have, since the date of the Judgment, provided a document to DSPC purportedly directing Perpetual to register the transfer of units but have subsequently: (i) indicated to Perpetual that they do not wish to proceed with the transfer of their units to DSPC; or (ii) not responded to enquiries made by Perpetual seeking to ascertain whether or not they wish to proceed with the transfer of their units to DSPC. (c) Whether, pursuant to paragraph 82(c) of the Judgment, Perpetual would be justified in refusing to register any transfer of units to DSPC in respect of a registered unitholder in the MIF from time to time and/or a registered unitholder in the WMIF from time to time (whether or not that unitholder is identified in the annexures to the Statement of Facts before the Court at the hearing before White J on 4 March 2011 or in the annexures to the Supplementary Statement of Facts before me at the present hearing) in circumstances where, after Perpetual has received a form of transfer to DSPC relating to the unitholder, the unitholder has: (i) indicated to Perpetual that he/she/they do not wish to proceed with the transfer of their units to DSPC; or (ii) not responded to enquiries made by Perpetual seeking to ascertain whether or not he/she/they wish to proceed with the transfer of their units to DSPC, including, without limitation, any transfers relating to units held by the MIF Unitholders identified in Annexure E (Annexure E Unitholders). (d) Whether, pursuant to paragraph 82(c) of the Judgment, Perpetual would be justified in refusing to register the transfer of units to DSPC in respect of the currently registered MIF unitholder known as Hilary Medlow. 19The dispute (other than as to the position of Ms Medlow, whom DSPC is prepared to accept falls within paragraph 82(c)(ii)) is as to unitholders in category (ii) in each of the categories in (a) - (c) above, since Mr Kerr accepts that, whether or not Perpetual was justified in seeking further confirmation from unitholders of their intentions after the amended transfers and new directions were sent, (a matter that DSPC has more than once suggested amounts to an interference with contractual relations) it having now done so, a negative response by a unitholder so approached would bring his, her or its case within 82(c)(ii). Background to present application 20The background to the initial application for judicial advice is set out in paragraphs [4] - [40] of his Honour's reasons and I do not repeat that here. 21At [108] his Honour noted that: in relation to the unitholders who responded and who have stated that they do not wish the transfers to proceed, a question arises as between them and DSPC as to whether each contract arising from the acceptance of DSPC's offer and the accompanying grant of a power of attorney is liable to be rescinded ab initio . That question may also arise in relation to the unitholders who have not responded to Perpetual's circular and questionnaire . (my emphasis) 22I have referred earlier to the fact that, since the initial judicial advice, both Perpetual and DSPC have been in communication with unitholders. On 15 March 2011, Perpetual wrote to those unitholders who had (prior to the initial judicial advice application) completed Perpetual's questionnaire (Exhibit 1) to the effect they did not wish to transfer their units (or did not understand that they had done so). Perpetual advised those unitholders that it would not register the transfers and stated that "If you receive any other unsolicited offer or requests from [DSPC] please contact you financial adviser or as before signing". 23(Mr Kerr notes that the 15 March 2011 letter did not explain to unitholders that the judicial advice was not determinative of the validity of the vendor unitholders' underlying contract with DSPC. I accept that this is the case. That said, DSPC's correspondence with unitholders in turn does not clearly draw unitholders' attention to the possibility that the contract purportedly entered into by them might not be enforceable. 24DSPC's lawyers, by letter dated 18 March 2011 to Perpetual, asserted that insofar as Perpetual has refused to register transfers submitted "and will otherwise be acting in accordance with White J's advice", it may be liable to a claim in tort for interference with contractual relations, stating that: ... in honouring ongoing vendor unit holder redemption requests and making payments to vendor unitholders your client will be either directly facilitating vendor unit holders breaching their contracts or inducing vendor unitholders to breach their contracts. Such conduct would, prima facie, constitute tortious interference with contractual relations and, in our view, the elements of a justification defence would not be satisfied where the only justification is that your client was following White J's advice. 25By letter dated 24 March 2011, Perpetual wrote to all unitholders advising that DSPC had lodged a notice of interest and that DSPC had informed it of its intention to write to unitholders. The letter advised unitholders that if any correspondence was received from DSPC "in relation to the above, or in relation to any other matter concerning your units, we strongly recommend that you seek your own legal advice. That legal advice should include advice concerning your entitlement to the distribution and redemption proceeds relating to your units." (emphasis as per original) 26By letter dated 28 March 2011, DSPC further advised Perpetual: Please note that, should you communicate with Unit holders about the enclosed transfer forms and thereby induce Unit holders to withdraw their direction to transfer, induce Unit holders to breach their contracts with DSPC or generally prevent DSPC receiving the benefits of the contracts, DSPC reserves all rights against the contravening Unit holders (in contract) and you (in the tort of intentional interference with contractual relations). 27Between 28 March and 11 May 2011, DSPC lodged with Perpetual further transfers of units in MIF. It is conceded that those transfers comply with s 1071B. They relate both to transfers of units which were the subject of non-complying transfers lodged prior to 9 March 2011 and to transfers of units which had not been the subject of transfers lodged prior to 9 March 2011. (Depending on the time the documentation was signed, it may or may not have followed receipt of the letter from Perpetual on 24 March 2011 cautioning unitholders in the terms set out above.) 28DSPC also lodged with Perpetual in most (if not all) cases a document signed by the vendor unitholder directing Perpetual to register the transfer. In the case of the replacement transfers, the direction followed a letter from DSPC which advised the vendor unitholder that DSPC would commence proceedings to enforce the contract for the sale of the units if the unitholder did not return the signed certificate. In the case of the new transfers, the direction was a response to a letter from DSPC in different terms. 29Perpetual has also received documentation in relation to one unitholder in a third fund (Perpetual's Mortgage Fund). (None of the unitholders in the Mortgage Fund was the subject of specific consideration in the context of the 4 March 2011 hearing.) 30Perpetual notes that some of the MIF unitholders the subject of that correspondence were considered (in the sense of being listed in the relevance schedule of unitholders) in the context of the 4 March 2011 hearing, but others were not (because DSPC had not provided transfers or powers of attorney to Perpetual concerning those other unitholders prior to the hearing on 4 March 2011). No documentation has been received relating to unitholders in the WMIF. 31In the Supplementary Statement of Facts filed for Perpetual on 23 May 2011 (and a copy of which was served on DSPC and most of the relevant unitholders in accordance with directions earlier made by me), it is noted that the letters from DSPC to Perpetual (sent since the judicial advice was given) enclose, among other things: (a) in relation to some unitholders in the MIF and Perpetual's Mortgage Fund, stamped transfers signed by a Mr David Tweed on behalf of DSPC both as transferor pursuant to powers of attorney granted by unitholders, and as transferee, showing the place of incorporation of Perpetual as the responsible entity as being New South Wales (Amended Transfer Forms). (b) in relation to some unitholders in the MIF and Perpetual's Mortgage Fund, certified copies of correspondence from DSPC to unitholders (New DSPC Forms), which includes a direction to Perpetual counter-signed by the relevant unitholders, in terms directing Perpetual to register the transfer of units belonging to the relevant unitholders to DSPC; amend the address on the register of members from die relevant unitholder's current nominated address to DSPC's address and send to the unitholder at that address a statement showing the unitholder's current balance and transactions on the unitholder's account since 1 November 2010; 32The New DSPC Forms and Amended Transfer Forms relate to: (a) 7 unitholders in the MIF who were not referred to in either Annexure A or Annexure B to the Statement of Facts filed in Court on I March 2011 (March Statement of Facts) (because, at the time of the March Statement of Facts, no transfer forms or powers of attorney had been received by Perpetual in relation to those unitholders and Perpetual was not aware that those unitholders had executed powers of attorney relating to their units); (these unitholders are defined in the Supplementary Statement of Facts as the New MIF Unitholders and they are identified in Annexure C to the Supplementary Statement of Facts); (b) 18 unitholders who were identified in Annexure A to the March Statement of Facts (as being unitholders in respect of whom Perpetual had received powers of attorney and transfer documentation) who remain the registered owners of MIF units (defined in the Supplementary Statement of Facts as Continuing MIF Unitholders with units), in respect of one of whom (Mrs Hilary Medlow) Perpetual has received an Amended Transfer Form but not a New DSPC Form. (c) 3 unitholders who were identified in Annexure A or B to the March Statement of Facts (as being unitholders in respect of whom Perpetual had received powers of attorney and transfer documentation), who are no longer the registered owners of MIF units as they have redeemed their units (Continuing MIF Unitholders without units), in respect of one of whom (Mr Basil Walker), Perpetual has received an Amended Transfer Form but not a New DSPC Form; and (d) one unitholder in Perpetual's Mortgage Fund who was not the subject of the initial application for judicial advice (and who was not identified in the Annexures to the March Statement of Facts) (defined as the Mortgage Fund Unitholder), identified in Annexure D to the Supplementary Statement of Facts. 33Four currently registered unitholders in the MIF have informed Perpetual, either themselves or through solicitors acting for them, that they have signed transfer documentation purporting to accept the offer from DSPC to purchase their units. Three of those four unitholders, one of whom is Mr George Roberts (for whom Mr Knackstredt appears on the present application for judicial advice), are identified in Annexure E to the Supplementary Statement of Facts (Annexure E Unitholders). The fourth unitholder, Mr Gowty, is identified in Annexure A to the Supplementary Statement of Facts (instead of Annexure E) because Perpetual was aware that Mr Gowty had signed a DSPC power of attorney as at the date of the March Statement of Facts. As at the date of the Supplementary Statement of Facts, Perpetual had not received any transfer documentation from DSPC in relation to the Annexure E Unitholders or Mr Gowty. 34In relation to Mr Roberts, who it is said was suffering from dementia when he signed the initial power of attorney in favour of DSPC (and in respect of whom the transfer documentation has been provided by DSPC to Perpetual), he has received (but has not signed) a letter dated 21 March 2011 from DSPC (i.e. New DSCP Form). Proceedings have since been commenced in this Court against DSPC (by a tutor acting in the name of Mr Roberts) seeking a declaration that the purported contract between DSPC and Mr Roberts is void. Mr Knackstredt informed me that no injunction had been sought in those proceedings restraining registration of the documentation or to restrain DSPC from commencing proceedings under s 107(1)(f) of the Corporations Act to compel registration (though an undertaking had been sought from DSPC in that regard). 35Perpetual's Supplementary Statement of Facts notes that it is possible that other unitholders in the MIF or the WMIF (or unitholders in Perpetual's Mortgage Fund) have executed documentation provided to them by DSPC but that, as at the date of the Supplementary Statement of Facts, Perpetual had not received any documentation from DSPC in respect of those unitholders. (As an example, reference is made to an authority dated 6 May 2011 that was provided to Perpetual in relation to Mr and Mrs Vanderbeek who were identified in Annexure A to the March Statement of Facts as unitholders who did not wish to proceed with the transfer of their units to DSPC). Perpetual has not received an Amended Transfer Form or New DSPC Form in relation to Mr and Mrs Vanderbeek. The solicitor acting for Perpetual (Mr Luke Buchanan) has deposed in his affidavit of 30 May 2011 that a solicitor in his office (Mr Simon Rees) has been informed that one unitholder has passed away and that instructions had been received by a solicitor for the defence of any proceedings brought against the estate of Mr Vanderbeek in relation to the transfer in respect of his units. 36By letter dated 7 April 2011 to Perpetual, DSPC's lawyers have stated: In circumstances where each vendor has provided an unequivocal direction to Perpetual should Perpetual further investigate vendors' wishes, motivations and understandings and thereby induce a contrary direction from vendors, those investigations would not be sanctioned by the judicial advice and would likely constitute tortuous interference with contractual relations. 37Not surprisingly, perhaps, in view of the above communications, Perpetual has sought clarification as to the judicial advice obtained in March 2011, so as to ensure that it acts in accordance with that judicial advice in registering or refusing to register (as the case may be) the transfers of units to DSPC which are the subject of the New DSPC Forms and Amended Transfer Forms. 38Perpetual's principal concern is that it is unclear whether the New DSPC Forms satisfy the requirement of an indication by unitholders to Perpetual that they wish the transfers of their units to DSPC to be registered, within the meaning of paragraph [82(b)] of the Judicial Advice. 39In particular, Perpetual raises three matters. First , that the New DSPC Forms were not sent to unitholders by Perpetual; second , that, once countersigned by unitholders, the forms were not sent to Perpetual by those unitholders but, rather, were provided to unitholders by DSPC and returned to DSPC by those unitholders; and, third , that Perpetual is not aware of the circumstances in which DSPC has procured the counter-signing by unitholders of the New DSPC Forms (since it has not been provided with copies of correspondence passing between DSPC and each unitholder which elicited the New DSPC Forms counter-signed by the unitholders). 40As to the second of those matters, Perpetual considers that it may be argued that those unitholders have not "indicated to Perpetual" that they wish the transfers to be registered for the purposes of paragraph 82(b) of the Judicial Advice. 41Relevantly, Perpetual says (and I accept that this is its genuine concern) that it does not consider that it is "entirely clear" from the New DSPC Forms that each unitholder who has signed them wishes the transfers to be registered, for the purposes of paragraph [82(b)] of the Judicial Advice. This is because Perpetual considers that there is a possibility that the New MIF Unitholders (who did not receive a questionnaire from Perpetual prior to the 4 March 2011 hearing as Perpetual had not received any transfers or powers of attorney relating to their units), may be equally confused about DSPC's correspondence as were various of the other unitholders (having regard to the responses received by Perpetual to the questionnaire sent to those other unitholders). 42As to the third of those matters, reference was made to sample letters, namely a letter dated 28 March 2011 from Mr William Gowty to Perpetual and to a letter Perpetual received on behalf of Mrs Slattery, a unitholder who was identified in Annexure A to the March Statement of Facts (and who, so far as Perpetual is aware, has not counter-signed a New DSPC Form). (The particular form of the letters sent was identified by Mr Kerr in his submissions). 43In relation to the three matters raised by Perpetual, Mr Kerr submits that none justifies Perpetual refusing to register the Amended Transfers (or new Transfers as the case may be) nor did they justify Perpetual seeking a further indication from the unitholders who had signed the DSPC directions in the New DSPC Forms. 44On or about 2 May 2011 Perpetual wrote to all MIF unitholders (except Mrs Medlow to whom I refer below) in respect of whom it had received Amended Transfer Forms and New DSPC Forms enquiring as to the position of the unitholders. (To the extent that the 2 May 2011 letter to unitholders is premised on an assumption that the DSPC directions were not the unitholder's directions but were DSPC's directions, Mr Kerr submits that Perpetual proceeded by assuming that which it ought to have set out to prove.) 45Of the responses which Perpetual has received from the Continuing MIF Unitholders with Units (i.e. those MIF Unitholders whose transfer forms had been received before the proceedings in March 2011 and in respect of whom Amended Transfer forms and New DSPC Forms had been received): (a) four unitholders responded to the effect that they did not wish to proceed with the transfer of their units to DSPC (Mrs Robson, Mr Rowell, Mrs Giffin and Mr and Mrs Dale); (b) four did not respond to Perpetual's correspondence (Mrs Lizza, Mr Howard, the Estate of Alan Butler and Ms Poli); and (c) nine responded to the effect that they wished to proceed with the transfer of their units to DSPC (Mrs Lane, Mrs Tcece, Mrs Telford, Mr and Mrs Colella, Mr and Mrs Claughton, Mr and Mrs Peate, Mr and Mrs Gill, Mrs Ash and Mrs Poole). 46Perpetual has registered the transfers of the unitholders referred to in (c) but not those in (a) and (b). Perpetual notes that conflicting responses were received by Mr and Mrs Dale, (a letter was received by Perpetual on 4 April 2011 stating that they will "go ahead with their offer" and, on 4 May 2011, additional correspondence stating that their "lawyer will be in contact regarding this matter in due course"). Hence Perpetual has not registered their transfer. 47In relation to the New MIF Unitholders, Perpetual sent a questionnaire similar in substance to that which had earlier been sent to each of the unitholders in relation to whom Perpetual had received transfers at the time of the earlier application for judicial advice. To those questionnaires, (a) three responded to the effect that they did not wish to proceed with the transfer of their units to DSPC (Mr and Mrs Karakaltsas, Mr Forster and Mr Yesberg); (b) three did not respond (Mr Verhulsdonk, Mrs Orr and Mrs Rowett); and (c) one responded to the effect that the unitholder wished to proceed with the transfer of his units to DSPC (Mr A Lucas & Ms S Dennis as trustee for the Ashleigh Michelle Lucas Trust). That transfer has been registered. 48No further correspondence has been sent by Perpetual to the Annexure E Unitholders (as no Amended Transfers or New DSPC forms have been received in relation to those unitholders). 49A further complication is that, as at the date of the March Statement of Facts, certain unitholders who had granted powers of attorney to DSPC in relation to their units in the MIF had subsequently submitted withdrawal requests to Perpetual. (Pending receipt of the judicial advice, those withdrawal requests were dealt with as indicated in [60] - [67] of the March Statement of Facts.) 50In relation to the five Continuing MIF Unitholders without units who were identified in Annexure B to the Supplementary Statement of Facts, Perpetual notes that: (a) Mr and Mrs Trippi (in respect of whom Perpetual received a New DSPC Form and an Amended Transfer Form from DSPC) were not registered unitholders at the time when Perpetual received the first notification of the (invalid) power of attorney or when Perpetual subsequently received the transfer form and power of attorney. Their account was closed on 5 October 2010 after receipt by Perpetual of a request for withdrawal of the entire investment (March Statement of Facts, paragraphs 26-29 and Tab 30, March Bundle, pages 607-613). As such, Perpetual maintains that they have no units that could be transferred to DSPC. (b) Two other unitholders have fully redeemed their units in the MIF in the following circumstances: (i) Mr Basil Walker (in respect of whom Perpetual received an Amended Transfer Form from DSPC) had indicated to Perpetual, by the date of that March Statement of Facts that he wished to proceed with the transfer of his units to DSPC but had submitted a redemption request in respect of the whole of his investment in the MIF on 3 December 2010. The redemption proceeds corresponding to Mr Walker's redemption request were paid to Mr Walker by Perpetual on 14 March 2011. Perpetual says it did so in accordance with 82(e) of the judgment, as Mr Walker was the registered unitholder of those units at that time. As such, Mr Walker does not have any units in the MIF that can be transferred to DSPC. (ii) Mr Francesco and Mrs Carmela Torrisi (in respect of whom Perpetual received a New DSPC Form and an Amended Transfer Form from DSPC) had indicated to Perpetual, by the date of the March Statement of Facts, that they did not wish to proceed with the transfer of their units to DSPC. Mr and Mrs Torrisi had submitted a redemption request in respect of the whole of their investment in the MIF on 2 November 2010. The redemption proceeds corresponding to Mr and Mrs Torrisi's redemption request were paid to Mr and Mrs Torrisi by Perpetual on 14 March 2011, again in reliance by Perpetual on 82(e) of the judgment as Mr and Mrs Torrisi remained the registered unitholders at that time. As such, Mr and Mrs Torrisi do not have any units in the MIF that can now be transferred to DSPC. 51Perpetual seeks no advice, or clarification of advice, in relation to the Continuing MIF Unitholders without Units (the above, as I understand it, being provided simply by way of full disclosure of the current position). 52Perpetual also notes that in the period up to the time of receipt by it of the New DSPC Forms and Amended Transfer Forms from DSPC, a number of unitholders have redeemed some of their units, with the consequence that they are currently the registered owner of fewer units than the number identified on the relevant Amended Transfer Forms. (The differences between the number of units the subject of the relevant Amended Transfer Forms, and the registered holdings as at the date of the Supplementary Statement of Facts, are identified in the Annexures to the Supplementary Statement of Facts.) 53Perpetual notes that many (but not all), of the Amended Transfer Forms identify the number of units to be transferred as being a particular number "(or such lesser number as are registered in the name of the seller)". In registering transfers to DSPC, Perpetual has treated all such transfers as relating to the entirety of the relevant unitholding or such lesser number of units as is registered in the name of the unitholder. 54In relation to Mrs Hilary Medlow, who was identified in the March Statement of Facts as a unitholder who had indicated to Perpetual that she wished to proceed with the transfer of her units; on 18 May 2011, Perpetual became aware that in February 2011 two completed questionnaires relating to Mrs Medlow were returned to Perpetual: one of which stated that she wished to proceed with the transfer of her units to DSPC and the other stated that she did not wish to proceed with the transfer of her units to DSPC. Perpetual does not know which completed questionnaire was submitted first (DSPC, however, proceeding on the basis that the negative response was the later of the two) and in those circumstances Perpetual considers it unclear whether Mrs Medlow does, or does not, wish to proceed with the transfer of her units to DSPC. Accordingly, as at the date of the Supplementary Statement of Facts, Perpetual had not registered the transfer of Mrs Medlow's units to DSPC. 55A copy of the further Perpetual correspondence was sent to the relevant unitholder in Perpetual's Mortgage Fund. The response received from that unitholder was that the unitholder did not wish to proceed with the transfer of units to DSPC. As at the date of the Supplementary Statement of Facts, Perpetual has not registered the transfer of units to DSPC in respect of that unitholder, nor has it changed the registered address or account details corresponding to those units. 56Mr Kerr submits that a direction signed by a unitholder that is addressed to Perpetual is an indication to it, irrespective of who prepared the form or who delivered it to Perpetual, the critical matter being is the content of the document. Mr Kerr submits that there is nothing in the earlier advice which requires a nexus between Perpetual's obligation to register and the unitholder's subjective state of mind; rather that what the earlier advice prescribed was a regime whereby Perpetual would be justified in registering or not registering based on an objective indication of the unitholders' wishes. Once Perpetual has received, in the form of the DSPC directions, an objective indication of the vendor unitholder's wish, it is said that Perpetual should act (and in the case of the New DSPC forms should have acted) upon it and should not engage in further investigations "much less, invited a countermanding instruction" (as the letter of 2 May 2011 is so characterised). 57Mr Kerr submits that [82(b)] and [82(c)] of the earlier judicial advice dealt comprehensively with the position of future lodgements of transfers of units in MIF to DSPC (and hence no further advice is required) and that the sole relevant requirement for Perpetual (to be justified in registering the replacement transfers and new transfers, in accordance with the advice in [82(b)]), is that the relevant unitholder has "indicated" to it that they wish the transfer to be registered. It is thus said that there is nothing ambiguous about the application of the judicial advice Perpetual has received to the circumstances raised, that the further advice sought is unnecessary and should not now be given. 58Further, it is submitted that if Perpetual's concern as to whether the earlier advice required the relevant indication to be procured by or delivered to it were genuine, then that matter ought to have been clarified before the further enquiries were dispatched and as early as 28 March 2011 when DSPC first lodged the New DSPC Forms (containing the directions to Perpetual). 59Mr Kerr submits (and I consider that there is some force to this submission) that different considerations arise where the vendor unitholders have positively indicated to Perpetual that they do not wish to proceed, from those which arise where vendor unitholders have simply not responded to Perpetual's most recent communication. In the former case, it is accepted by DSPC (as noted above) that the unitholder falls within [82(c)] of the judgment. As to the latter, the question is as to what significance should be attached to the DSPC direction in light of the lack of any subsequent confirmation (or, conversely, refutation) of the DSPC direction. DSPC maintains that where a clear direction has been given, it should not be treated as countermanded by silence in response to Perpetual's further queries. 60In relation to Mrs Medlow, (who has responded to the plaintiffs questionnaire twice, first on 15 February 2011 to the effect that she wished her units to be transferred and then on 16 February 2011 to the effect that she did not want her units to be transferred) Mr Kerr accepts that (notwithstanding Mrs Medlow's comments explaining what has caused her change of mind) [82(c)] deals with the situation and therefore says that no advice is required.