Plaintiff v Defendant

1. Since April 2020, the plaintiff (Mr Zhai) has been an investor in the Bensons Secured Income Fund (Fund), by investing $5 million in the Fund.[1] The defendant, Bensons Fund Management Pty Ltd (BFM) is the trustee of the Fund. Pursuant to a subscription deed entered into at the time, in return for his investment, Mr Zhai was issued 5 million preference units in the Fund at $1 per unit, with a fixed return of 7% per annum for two years ending 21 April 2022 with the units being able to be redeemed at that time.
2. In this proceeding, Mr Zhai alleges that BFM has failed or refused to:

(a) redeem his units in accordance with the terms of the subscription deed, despite repeated demands; and

(b) permit him to access certain trust documents.

1. Orders were made on 3 October 2025, upon application by Mr Zhai which was not opposed by BFM, that the allegation concerning access to trust documents be decided as a separate question, pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2025.[2] At the same time, directions were made for the plaintiff to file and serve a further amended statement of claim and any affidavits upon which he wished to rely in relation to the separate question, and for the defendant to file and serve any amended defence and affidavits upon which it wished to rely. The parties were also required to file and serve written outlines of submissions by 4pm on 31 October 2025.
2. The trial of the separate question was heard on 5 November 2025.
3. Accordingly, this judgment concerns only the separate question, being whether BFM has failed or refused to permit Mr Zhai to access certain documents and whether the Court should make orders for his access to those documents.

1. In his further amended statement of claim filed 16 October 2025, Mr Zhai alleges the following in respect of access to trust documents (Trust Documents Access Allegation), which is the subject of the separate question:

(a) in its capacity as trustee of the Fund, BFM is subject to a duty to permit unit holders of the Fund examination of documents that relate to the Fund and its administration;

(b) as a unit holder of the Fund, Mr Zhai has a proprietary interest in the trust documents;

(c) further or alternatively, Mr Zhai has a prima facie right of access to the trust documents;

(d) by reason of those matters, Mr Zhai is entitled to inspect the trust documents;

(e) by letter sent 7 April 2025, Mr Zhai requested inspection, alternatively copies, of certain trust documents;

(f) on 1 May 2025, BFM stated that it would make some of the requested documents available for inspection and on 30 May 2025 copies of some of the documents were provided;

(g) between then and 2 September 2025, the parties corresponded regarding various categories of documents, some of which were provided;[3]

(h) on 2 September 2025, BFM informed Mr Zhai that it would not provide any further documents unless ordered to do so by the Court; and

(i) in breach of its duty, BFM has failed or refused to allow Mr Zhai to inspect or copy the following trust documents the subject of the requests pleaded (Outstanding Trust Documents).[4]

1. In the prayer for relief, Mr Zhai relevantly seeks orders that BFM permit him to inspect and copy the Outstanding Trust Documents within 14 days.
2. The Trust Documents Access Allegation has been part of Mr Zhai's claim from the outset, however the way that it has been put has changed over time. The current iteration as contained in the further amended statement of claim is the culmination of five requests for documents made by Mr Zhai.
3. In its defence filed 28 October 2025 to the further amended statement of claim, BFM pleads as follows:

(a) it denies the allegation referred to in paragraph 6(a) above and says that if it otherwise bore the alleged duty, such duty was expressly excluded by clause 28.2 of the Trust Deed;

(b) it denies that as a unit holder, Mr Zhai has a proprietary interest in the trust documents;

(c) it admits that, but for clauses 3.5 and 3.7.2 of the Trust Deed, Mr Zhai would have had a prima facie right of access to trust documents;

(d) it admits that as part of the Court's inherent jurisdiction to supervise the administration of trusts, the Court may order it to produce trust documents for inspection and copying by Mr Zhai;

(e) it admits the making of the various requests and responses regarding trust documents pleaded by Mr Zhai; and

(f) denies that in breach of the pleaded duty BFM has failed or refused to allow Mr Zhai to inspect or copy the Outstanding Trust Documents.

1. As noted above, the trust documents to which Mr Zhai pleads he has been denied access are defined as the Outstanding Trust Documents and are set out in the further amended statement of claim. These comprise seven categories of documents, which I have set out below:

(a) Category 1: Any documents relied on by BFM in making decisions to invest or manage the funds received from investors in the Fund since April 2020, including but not limited to:

(i) land acquisition contract and settlement statement for the purchase of the property situated at 7 Hallenstein Street, Footscray, Victoria (the Project) by Warde Street Pty Ltd (Warde Street);

(ii) any intercreditor deeds entered into in respect of the Project;

(iii) construction contracts for the Project;

(iv) any documents relating to calculation of the development costs of the Project.

(b) Category 2: Any documents recording security granted over the Project (such as the first registered mortgage on the project granted by Warde Street to Qualitas).

(c) Category 3: Any written requests from BFM to Holding Redlich (BFM's then solicitors) seeking legal advice on:

(i) the variation of the Trust Deed for the Fund (including the variation made on 25 September 2020); and

(ii) resolutions made by the board on 12 December 2024.

(d) Category 4: All valuation reports for any investments made since April 2020.

(e) Category 5: Bank transaction records for the loan advanced by BFM to Warde Street.

(f) Category 6: All correspondence since April 2020 between BFM and any of its legal and financial advisers regarding the management of the Fund.

(g) Category 7: Profit and loss statements and balance sheets for the financial years ending 30 June 2020 to 30 June 2025 for the Fund.

1. In support of his claims regarding the Trust Documents Access Allegation, Mr Zhai relies upon the following materials:

(a) the affidavits affirmed by his solicitor, Yi Jin Wang of James IP Lawyers, affirmed 15 October 2025, 3 November 2025 and 4 November 2025 which were accepted for tender, save that pages 6-8 of exhibit YJW-1 to Mr Wang's first affidavit were not tendered; and

(b) the written outline of submissions signed by his solicitors dated 2 November 2025.

1. In response to those claims, BFM relies upon the following materials:

(a) the affidavit of Richard Curtis affirmed 24 October 2025. Mr Curtis is the managing director and chief executive officer of BFM (and other companies in the corporate group);

(b) the affidavits affirmed by its solicitor, Christopher Brodrick of Mills Oakley, affirmed 24 October 2025 and 27 October 2025; and

(c) the written outline of submissions from its counsel dated 31 October 2025.

1. In addition, counsel for both parties made oral submissions at trial.

B.4 Outstanding Trust Documents which are the subject of this judgment

1. Mr Curtis' affidavit sets out the following in respect of each category of Outstanding Trust Documents, in some detail:

(a) factual background relevant to the category;

(b) correspondence from or on behalf of Mr Zhai where the category (or part of it) was sought or first mentioned;

(c) correspondence from or on behalf of BFM regarding that category or part thereof, including which documents were provided and when, explanations as to whether such documents existed, whether they were trust documents and whether they would be provided anyway; and

(d) whether any further documents in that category existed.

1. BFM's written submissions also addressed these matters, by reference to the evidence, for each of the categories.
2. By the time that Mr Zhai's written outline of submissions was served at 11.57pm on Sunday 2 November 2025 (noting here that Tuesday 4 November was a public holiday and that this outline was served later than ordered), the only Outstanding Trust Documents to which Mr Zhai still sought access and copying were those documents described in the chapeau of Category 1, being 'any documents relied on by BFM in making decisions to invest or manage the funds received from investors in the Fund since April 2020' (Revised Category 1).
3. BFM's written outline of submissions addressed all seven categories of the Outstanding Trust Documents, since its outline was filed and served within the time ordered and at that point there had been no communication from Mr Zhai to indicate that the position had been narrowed.
4. Hence argument at the trial was directed to whether Mr Zhai was entitled to documents in Revised Category 1 and whether the Court should make an order in respect of them.

B.5 Further background regarding the Fund and the other allegations made in this proceeding

1. It is necessary to set out some further background regarding the Fund and the other allegations made in this proceeding, as these matters are relevant to the exercise of the Court's discretion.
2. BFM is a wholly-owned subsidiary of Bensons Property Group Pty Ltd (BPG). BFM is the trustee of a number of trusts, one of which is the Fund. The trusts were established so that an investment in them would assist a foreign national to obtain Australian residency.
3. Investors acquired preference units in the Fund on the terms of the Trust Deed and a subscription deed.
4. Clause 4.1 of schedule 1 of the subscription deed (Investment Mandate) provides as follows:

4 Investment Mandate

4.1 [BFM] will loan all or part of the Investment Sum to [BPG] (or associated entities) for the purposes of holding and developing real property in Australia, provided always that:

4.1.1 All loans must be fully documented with security of registered mortgage over real property in Australia;

4.1.2 The total loan to valuation ratio ('LVR') in respect of real properties secured must not exceed 90%.

1. Mr Zhai was a client of Atlas Advisors Pty Ltd (Atlas). Atlas had its own investment fund (Atlas Fund). Mr Zhai invested $5 million in the Atlas Fund. In April 2016, the trustee of the Atlas Fund, not Mr Zhai, invested $5 million in another fund of which BFM is the trustee, the Bensons Retail Strip Property Fund (BRSPF). The Atlas subscription deed for the BRSPF is identical in form to the subscription deed for the Fund.
2. As trustee of the BRSPF, BFM invested the Atlas $5 million by lending it to BPG. When the Atlas investment in the BRSPF matured in April 2020, Mr Zhai effectively rolled over what was ultimately his money into a direct investment with the Fund. BFM as trustee for the Fund and BPG as Guarantor executed a subscription deed by way of deed poll for the benefit of Mr Zhai. The transfer of Mr Zhai's investment of $5 million from BRSPF to the Fund did not require any cash movement through bank accounts, but was recorded through accounting journal ledger entries, which recorded the transfer of $5 million from BRSPF to the Fund and the transfer of the loan made to BPG by BRSPF to be a new loan from the Fund to BPG.
3. The last remaining development over which BFM as trustee of the Fund has security is the land for the Project, over which BFM has a second-ranking registered mortgage. The registered proprietor of the Project land is Warde Street. BPG is managing the Project on behalf of Warde Street.
4. BPG was the second defendant in this proceeding, however the claims which Mr Zhai made against it were dismissed after BPG went into voluntary administration which resulted in the execution of a deed of company arrangement.
5. As noted here, the central allegation made by Mr Zhai in this proceeding is that BFM has failed or refused to redeem his units in accordance with the terms of the subscription deed, despite repeated demands.
6. BFM admits that on 21 April 2022 it did not redeem Mr Zhai's units and did not pay Mr Zhai $5 million plus accrued interest of $244,382.81. BFM says that this is because on 25 September 2020, it exercised a right under clause 20 of the Trust Deed to vary the Trust Deed by deed poll. The variation involved the insertion of a force majeure clause into the Trust Deed as a new clause 12.5.
7. On 31 December 2020, BFM suspended its obligations to pay distributions and make redemptions by invoking the force majeure clause. That suspension has continued to date.
8. As at 30 June 2025, the Fund's only asset of substance was a loan to Warde Street of $16,007,105.[5]
9. In this case, Mr Zhai seeks access to documents which he says very clearly relate to the trust and its administration. He does so in circumstances where he contends that he has very serious concerns as to the manner in which the Fund has been conducted, for the following reasons:

(a) The Trust Deed was amended to insert a force majeure clause, seemingly for the purpose of relying on that clause to suspend unit holders' rights to interest and redemptions under the fund.

(b) Liquidity issues alone are not a force majeure event and the contention that COVID-19 continues to constitute a force majeure event does not withstand scrutiny.

(c) The extension of the force majeure event confers a very significant benefit on Warde Street as it retains the benefit of the $16 million lent by the Fund on an ongoing basis without the need to refinance. In circumstances where Warde Street and BFM have mutual directors, there is a very real prospect that the directors of BFM had a conflict of interest in determining to continue to rely on the force majeure event.

(d) The entirety of the funds invested in the Fund have been lent to a single project, thereby increasing the risk for investors in the Fund.

(e) Investors were told in an April 2025 investor update that 'There is no certainty that there will be sufficient net proceeds available from this project to repay Unit Holders', which gives rise to questions as to whether the investment is compliant with the Investment Mandate.

(f) It is unclear whether Benson Group entities related to Warde Street are charging fees in relation to the Project and, if so, whether those fees are appropriate.

(g) Contrary to what was said in the April investor update, Mr Curtis in his affidavit stated 'Settlement of the sales of apartments, which (after repayment of the Qualitas loan) will result in repayment of BFM's loan to WSPL, is expected to occur in April 2027'.

1. In order to determine whether an order should be made for Mr Zhai to have access to and be able to copy documents in Revised Category 1, the following issues need to be addressed:

(a) The source of Mr Zhai's right to access the documents and BFM's obligation to provide that access. In particular, does the proprietary or discretionary approach to access to trust documents apply?

(b) Whether the documents sought are trust documents.

(c) Whether the Court should order access to and copying of documents in Revised Category 1.

D Issue 1: Does the proprietary or discretionary approach to access to trust documents apply in this case?

1. It is common ground between the parties that there are two approaches taken by courts in determining whether beneficiaries should have access to trust documents: the proprietary approach and the discretionary approach.
2. It is also common ground that the preponderance of authority, or prevailing view, in Australia is that unlike the United Kingdom, the proprietary approach applies.[6]
3. The difference between the two approaches was explained by Barrett AsJ in the following way:

The phrase "proprietary approach" is, broadly speaking, a description of an entitlement to trust documents as of right, subject to exceptions, most notably in relation to documents evidencing the trustee's exercise of discretion, and having regard to considerations of confidentiality. Under the "discretionary approach", the court may order production of trust documents to a beneficiary as "one aspect of the court's inherent jurisdiction to supervise, and if necessary to intervene in, the administration of trusts".[7]

1. Another exception to the proprietary approach is where disclosure is not in the interests of the beneficiaries as a whole.[8]
2. Here, Mr Zhai contends that the proprietary approach applies but if it does not, then he would be entitled to inspect the documents pursuant to the discretionary approach. BFM denies that the proprietary approach applies, says that the Court should apply the discretionary approach, and submits that the Court should not give access to the Revised Category 1 documents.

1. It is convenient to begin with the defendant's submissions in respect of this issue.
2. BFM contends that the proprietary approach does not apply to this case and that the Court should apply the discretionary approach. While accepting that the prevailing view in Australia is that a beneficiary's entitlement to inspect and copy trust documents is to be determined by the proprietary approach, there are instances where that does not apply and this is one of them.
3. BFM relies on AIT Investment Group Pty Ltd v Markham Property Fund (No 2) Pty Ltd.[9] In that case, Bergin CJ in Eq held that since the proprietary approach depended on the beneficiary 'owning' in equity the trust documents (as trust documents are trust property) and the trust deed removed equitable ownership, the relevant provisions of the trust deed prevented the proprietary approach from applying.[10]
4. Clause 6.1 of the trust deed in AIT provided that a unit holder has 'no interest in any asset or part of any asset of the Trust' and is 'not entitled to call for or assert an interest in any part of the Trust Property'.[11]
5. Clause 6.4 of the trust deed in AIT provided that unit holders have no right to lodge a caveat affecting the trust property. Her Honour acknowledged that there is a difference between having a caveatable interest in the property and a provision that prohibits the lodging of a caveat.[12]
6. BFM points to clauses 3.5 and 3.7.2 of the Trust Deed and submits that these preclude Mr Zhai from claiming any interest in an asset, such that the proprietary approach cannot apply.
7. The relevant clauses of the Trust Deed are as follows:

(a) 'A Unit confers an interest in the Fund to which the Unit relates as a whole. No Unit confers any interest in any particular Asset' (clause 3.5).

(b) Each Unit Holder agrees not to: (b) 'purport to exercise a right in respect of an Asset or claim any interest in an Asset (for example, by lodging a caveat affecting an Asset)'; or (c) 'require an Asset to be transferred to the Unit Holder (or any other person)' (clause 3.7.2).

(c) 'Assets' is defined as 'all the Property, Investments, rights and income of the Trust from time to time' (clause 1.1).

(d) 'Property' is defined as 'property of any description and includes' (relevantly): (a) 'Land and any personal property'; (b) 'any estate or interest in property' (clause 1.1).

1. As to Mr Zhai's attempts to distinguish AIT, BFM submits that while the language between the two deeds is different, it is functionally the same as what was in issue in AIT. According to BFM, clause 3.7.2 of the Trust Deed goes further than what was described in AIT, because a unit holder agrees not to purport to exercise a right in respect of an Asset or claim any interest in an Asset.

1. The plaintiff pleads, and submits, that the proprietary approach applies in this case.
2. Mr Zhai seeks to distinguish AIT on the basis that:

(a) in AIT, the beneficiary could not lodge a caveat because it had no interest in the property; whereas in this case, a unit holder is just prevented from lodging a caveat;

(b) there is no clause in this Trust Deed like clause 6.1 in the deed in AIT; and

(c) clause 3.5 of the Trust Deed is very similar to the one described in AIT as applicable in a case cited there, being Costa & Duppe Properties Pty Ltd v Duppe & Ors,[13] where it was held that unit holders had a proprietary (and caveatable) interest in trust property. In AIT, Bergin CJ in Eq viewed that trust deed as slightly different to the one applicable in AIT.[14]

1. I do not accept the plaintiff's position on this issue. In my view, the Trust Deed clearly precludes a claim to any interest in an Asset of the Fund or the purported exercise of a right in respect of an Asset. Since the meaning of Asset includes Property, which in turn includes personal property (which would encompass trust documents) and any interest in property, Mr Zhai cannot assert a proprietary interest in trust documents or seek to exercise a right based on such an interest, which would include a right to inspect and copy trust documents.
2. In short, trust documents are trust property by virtue of the definitions of Property and Asset in the Trust Deed. Relying on the proprietary approach as a basis to inspect and copy trust documents is exercising a right in respect of trust property, which is precluded by the terms of the Trust Deed.
3. Accordingly, the proprietary approach does not apply in this case and hence to succeed, Mr Zhai must rely on the discretionary approach.

E Issue 2: Are the documents in Revised Category 1 trust documents?

1. The parties did not appear to differ in respect of the principles applicable to determining whether a document is a trust document.
2. There have been a number of attempts made to define what are 'trust documents'.
3. In Re Londonderry's Settlement,[15] Salmon LJ stated that:

The category of trust documents has never been comprehensively defined. Nor could it be - certainly not by me. Trust documents do, however, have these characteristics in common: (1) they are documents in the possession of the trustees as trustees; (2) they contain information about the trust which the beneficiaries are entitled to know; (3) the beneficiaries have a proprietary interest in the documents and, accordingly, are entitled to see them. If any parts of a document contain information which the beneficiaries are not entitled to know, I doubt whether such parts can truly be said to be integral parts of a trust document.[16]

1. In Mandie v Memart Nominees Pty Ltd,[17] Macaulay J observed:

Subject to various limitations, broadly speaking a trustee has a duty to provide beneficiaries with accurate information concerning the administration of the trust and to permit examination of documents that relate to the trust and its administration.[18]

1. In Hartigan Nominees Pty Ltd & Anor v Rydge,[19] Sheller JA concluded that the 'expression "trust document" can have little more precise meaning than a document relating to the trust or its administration'.[20]
2. Accordingly, a trust document is a document which is in the possession of the trustee and is a document which relates to the trust or its administration.
3. It is apparent from the extensive correspondence between the parties that the issue of whether all of the Outstanding Trust Documents were in fact trust documents was a hotly contested issue. This is also apparent from BFM's written submissions, given that it was responding to all categories.
4. However, it did not seem to be disputed that documents in Revised Category 1 were trust documents. It is difficult to see how documents in BFM's possession which it relied on in making decisions to invest or manage the funds received from investors in the Fund since April 2020 could not be regarded as trust documents.
5. Accordingly, I find that documents in Revised Category 1 which are in BFM's possession are trust documents.
6. That is not sufficient, however, as I will now turn to.

F Issue 3: Should the Court order access to and copying of documents in Revised Category 1?

1. As set out above, it is well-established that in its supervisory jurisdiction regarding trusts, the Court may make orders for beneficiaries to inspect and copy trust documents. In other words, the Court may exercise its discretion to make such orders.
2. Both parties referred to Chan v Valmorbida,[21] where Delany J set out and adopted a non-exhaustive list of factors to be taken into consideration where the Court is applying the discretionary approach which had been identified in Erceg v Erceg:[22]

(a) The documents that are sought. Where a number of documents are sought, each document (or class of document) may need to be evaluated separately, given that different considerations may apply to basic documents such as the trust deed and more remote documents such as the settlor's memorandum of wishes.

(b) The context for the request and the objective of the beneficiary in making the request. The case for disclosure will be compelling if meaningful monitoring of the trustee's compliance with the trust deed in the administration of the trust could not otherwise occur. In this regard, it may be relevant that disclosure has been made to other beneficiaries. However, assuming no improper motive on the part of the beneficiary seeking information, the fact that disclosure has previously been made to other beneficiaries will rarely be a decisive factor against disclosure.

(c) The nature of the interests held by the beneficiary seeking access. The degree of proximity of the beneficiary to the trust (or likelihood of the requesting beneficiary or others in the same class of beneficiaries benefiting from the trust) will also be a relevant factor.

(d) Whether there are issues of personal or commercial confidentiality. Recognition should be given to the need to protect confidential matters of a personal or commercial nature. The Court should also take into account any indications in the trust deed itself about the need for confidentiality in relation to commercial dealings or private matters in relation to particular beneficiaries.

(e) Whether there is any practical difficulty in providing the information. If the information sought by the person requesting the information would be difficult or expensive to generate or collate, that may be a factor against requiring its disclosure.

(f) Whether the documents sought disclosed the trustees' reasons for decisions made by trustees. It would not normally be appropriate to require disclosure of the trustees' reasons for particular decisions.

(g) The impact on the trustee and the other beneficiaries if disclosure is made. In particular, would disclosure have an adverse impact on the beneficiaries as a whole that would outweigh the benefit of disclosure to the requesting beneficiary? In the case of a family trust, this may include the possibility that disclosure would embitter family feelings in the relationship between the trustees and beneficiaries to the detriment of the beneficiaries as a whole. However, on the other hand, non-disclosure may have a similar effect.

(h) The likely impact on the settlor and third parties if disclosure is made. The impact that disclosure will have on the settlor and/or on third parties will need to be considered.

(i) Whether disclosure can be made while still protecting confidentiality. This may require that copies of documents applied to a beneficiary are redacted to ensure non-disclosure of confidential information.

(j) Whether safeguards can be imposed on the use of the trust documentation. Examples would include undertakings and inspection by professional advisers only and other safeguards to ensure the documentation is used only for the purpose for which it was disclosed.[23]

1. Mr Zhai submits that the documents relied on by BFM in making decisions to invest or manage the funds invested in the Fund are necessary for him to ensure that the Fund is being properly administered. That is particularly the case given BFM's ongoing reliance on COVID-19 to extend the operation of a force majeure clause.
2. Whilst BFM has provided some trust documents to Mr Zhai, he says that it has done so selectively and only under the pressure of this hearing. Mr Zhai's position is that BFM has made no real effort to provide documents relied on by it in making decisions to invest or manage the funds and has instead responded only to the specific examples given by Mr Zhai of documents which may fall under that category.
3. In circumstances where the directors of BFM are also directors of Warde Street and BPG, Mr Zhai submits that the case for disclosure is compelling, because it is necessary to ensure and monitor compliance with the Trust Deed and the trustee's duties to the unit holders.
4. Mr Zhai submits that he has a very significant interest in the Fund, having invested $5 million through the Business Skills (Provisional) (Class EB) Business Innovation and Investment (Subclass 188) visa program, which he says (without further elaboration) is also an important consideration.
5. He submits that there are no issues of personal or commercial confidentiality at play. The trustee has not complained of the expense incurred in collating the documents. The only expense it complains of appears to be its legal expenses in corresponding with Mr Zhai, whereas he contends those expenses could have been avoided by giving access to trust documents from the outset.
6. Mr Zhai submits that in the circumstances, he ought to be given access to the documents relied on by BFM in making decisions to invest or manage the funds invested in the Fund. Those documents are said to go to the heart of the administration of the Fund and will enable him to monitor compliance with the Trust Deed.
7. Insofar as BFM's submission that Mr Zhai puts his case differently to how he has put it previously, by the revision to Category 1 is concerned, Mr Zhai submits that Category 1 in the further amended statement of claim contains the phrase 'including but not limited to', so what is now Revised Category 1 has been part of the claim before the hearing.
8. Mr Zhai also submits that while there has been a long history of correspondence between the parties, the separate question should not be run on the basis of that correspondence but on the basis of what is set out in the further amended statement of claim.

1. BFM welcomed the reduction of seven categories of Outstanding Trust Documents to one category, but submitted that Revised Category 1 has been changed from the way it appears in the further amended statement of claim, in that the sub-categories are not set out. It describes this as a subtle change and maintains that how it responded to Category 1 previously is relevant here.
2. BFM says that Mr Zhai's position now is that by responding to the sub-categories of Category 1, BFM has ignored the overarching words to Category 1. BFM says this has not been the subject of complaint in the past and has now only been raised for the first time in oral submissions. This is despite the significant correspondence which has passed between the parties.
3. BFM submits that it is axiomatic that a trustee cannot be required to produce documents which are not its documents. A document might be one that relates to a trust, but if a trustee does not have that document, then it is not a trust document.
4. BFM contends that in order to press for provision of further documents given the extensive production already given, Mr Zhai must establish that those further documents are held by BFM, are trust documents within the broad description of that in the authorities, and that they are documents which have not already been produced or shown to not exist.
5. BFM's position is that it has progressively provided documents in response to Mr Zhai's requests. In particular, it submits as follows, by reference to the affidavit material:

(a) Every letter from James IP Lawyers contained new requests. Indeed, as will be seen below, the Summons seeks inspection of documents that have never previously been requested.

(b) In an endeavour to end the request process, BFM went as far as to obtain possession of documents from BPG so they could be provided to Mr Zhai. Nonetheless, in every response Holding Redlich maintained that the documents that Mr Zhai seeks to inspect are not trust documents.

(c) However, as Holding Redlich said in its letter of 2 September 2025 of the then five requests in James IP Lawyers' letters:

Your client's five requests for the production of documents have been unhelpful. Several of the requests have been difficult to understand, others have requested documents already provided, and others have requested provision of copies of documents which we have already informed you do not exist. Not only has this made it difficult for BFM to meaningfully respond, but it has resulted in wasted time and costs for both your client and BFM.

(d) With respect to documents already provided, the Fund's financial statements were requested in James IP Lawyers' 7 April 2025 letter and provided in Holding Redlich's 1 May 2025 letter (the FY2024 statements had the five preceding financial year's figures). James IP Lawyers asked again for Holding Redlich to confirm whether profit and loss and balance sheet statements had been prepared for the financial years between 30 June 2019 and 30 June 2023. Holding Redlich responded that the relevant financial reports could be generated but that James IP Lawyers already had the information.

(e) As for requests for documents that do not exist, Mr Zhai requested the Fund's audit reports in James IP Lawyers' 7 April 2025 letter and was informed in Holding Redlich's 1 May 2025 letter that the Fund did not have any (it not being required to by law to be audited). James IP Lawyers asked again for the same documents in its 19 June 2025 letter, only to again be told in Holding Redlich's 10 July 2025 letter that they do not exist. Undeterred, James IP Lawyers asked again for the same documents in its 15 August 2025 letter, only to again be told in Holding Redlich's 2 September 2025 letter that they do not exist.

(f) The Court will note that this harassing conduct is driven by Mr Zhai either not understanding or not accepting responses. So, in the case of the audit reports, James IP Lawyers said in its 18 August 2025 email:

However, after having reviewed the documents you have provided so far, our client - Mr Zhai insisted that as the trustee of [the Fund], BFM should have arranged auditors reports on the trust assets and liabilities and for BFM as well, and he wants to review such auditors (sic) reports.

(g) Indeed, since the Summons was issued, on 23 October 2025, James IP Lawyers wrote saying that Mr Zhai finds it unbelievable that the Fund was not audited and James IP Lawyers suggested that BFM get the Fund audited. Even if it was correct that the Fund 'should' be audited (and it is not), that cannot assist Mr Zhai in an application for access to trust documents. If documents do not exist, and have never existed, they cannot be inspected.

(h) The purpose of Mr Zhai's requests is to determine whether he has a further claim against BFM. In this regard, Mr Zhai's counsel informed the Court on 20 June 2025 that Mr Zhai may need to amend the statement of claim depending upon what the inspected documents say.

(i) James IP Lawyers has made clear that Mr Zhai wants to inspect a vast quantity of documents to determine for himself whether BFM has complied with the mandated LVR requirement. That purpose has been restated since the Summons was issued. Mr Zhai has not enunciated what claims might exist, much less offered any credible reason to believe that they might exist. The exercise is a fishing expedition.

(j) Finally, Mr Brodrick says that BFM has incurred considerable legal costs in responding to Mr Zhai's five requests.

(k) The amount that the six unitholders in the Fund will receive upon completion of the Project is being eroded by the costs of responding to Mr Zhai's requests and BFM is now protecting the other five unitholders.

1. BFM makes the following submissions in respect of the correspondence between the parties dealing with Category 1:

(a) By the letter from James IP Lawyers dated 15 August 2025, the plaintiff sought 'any documents relied on by [BFM] in making decisions to invest funds obtained from the investors are trust documents. Those documents could include: ...', and then there were some eight sub-categories of documents listed. None of those mention documents regarding the management of funds received from investors. BFM says it does not know why Mr Zhai subsequently included 'manage the funds' in Category 1 and Revised Category 1, since it is common ground that BFM used all of Mr Zhai's funds to make the loan to Warde Street and so there was no management of monies after that.

(b) In the letter in response to this from Holding Redlich dated 2 September 2025, a detailed response is given. These include explanations about the BFM loan to Warde Street and that in making the decision to invest in the Project by making that loan, BFM did not rely on any documents relating to 'the costs of the developer in acquiring the land + Town planning + design + consultancy service + construction of the building'. BFM explained that with the exception of land acquisition costs, the other costs referred to could not be determined by the developer until 2024 when a construction price and construction program were agreed with the builder. To the extent that, as suggested in the James IP Lawyers' 15 August letter, Mr Zhai wants further documents so he can perform his own LVR calculations, BFM stated that the calculation of LVR requires only the value of the property and the total loans secured against the property, and documents relevant to that had already been provided on a confidential basis.

(c) BFM says that the only relevant decision made by it in respect of managing the funds was to lend the money to Warde Street. At the time it did so, development costs had not been incurred and even so they are not costs of BFM, such that putting aside the timing issue, these expenses are not expenses of the Fund.

(d) Annexed to the 2 September letter referred to above is a table summarising the correspondence and the response to the categories/sub-categories sought. That table sets out the categories and sub-categories sought in the 15 August letter, instances where there have been previous identical or similar requests, and BFM's response.

1. In its written outline, BFM made detailed submissions about each of the sub-categories of Category 1. It is convenient for me to set these out here, as I consider it relevant to the determination of the separate question.
2. In respect of sub-category (a) of Category 1, being land acquisition documents for the Project land, BFM submits that:

(a) This request was first made in James IP Lawyers' letter dated 15 August 2025.

(b) The documents were not relied upon by BFM and are not trust documents as they belong to BPG as manager for Warde Street.

1. In respect of sub-category (b) of Category 1, being intercreditor deeds, BFM submits that:

(a) The first request for intercreditor deeds was made in James IP Lawyers' letter dated 17 July 2025.

(b) Even though they were not relied upon by BFM, BFM provided those documents under cover of Holding Redlich's letters dated 8 August 2025 having obtained them from BPG in order to try to appease Mr Zhai.

1. In respect of sub-category (c) of Category 1, being construction contracts for the Project land, BFM submits that:

(a) The first request for construction contracts was made in James IP Lawyers' letter dated 17 July 2025.

(b) Even though not relied upon by BFM and not trust documents, BFM obtained and provided mortgage and finance documents under cover of Holding Redlich's letters dated 8 August 2025.

(c) The second request for construction contracts was made in James IP Lawyers' letter dated 15 August 2025.

(d) Holding Redlich's letter dated 2 September 2025 repeated that the contracts had already been provided and there were no further contracts.

1. In respect of sub-category (d) of Category 1, being development cost documents, BFM submits that:

(a) It is difficult to understand of what documents this request seeks inspection. Before the Summons, there was no request for 'documents relating to calculation of the development costs' of the Project land.

(b) The request in James IP Lawyers' letter dated 15 August 2025 for the first time requested 'All service contracts including designs (sic) and architectures (sic) and professional consultancy for all the relevant projects'.

(c) James IP Lawyers' covering email dated 18 August 2025 (the 15 August letter was actually sent on 18 August) made it plain that Mr Zhai wanted the documents because:

(i) in his view, the LVR could not be calculated without the contracts (as opposed to the invoices actually paid); and

(ii) he wanted to determine the accuracy of BFM's LVR calculations.

(d) That position was repeated in James IP Lawyers' 19 August 2025 email.

(e) Holding Redlich's letter dated 2 September 2025 explained that BFM did not rely on documents relating to costs (because costs may not be known when funds were advanced) and such documents were not trust documents.

(f) The documents were not relied upon by BFM and are not trust documents (they are in the possession of BPG as manager on Warde Street's behalf).

1. Nowhere after Holding Redlich's 2 September letter and the annexure thereto, which contains a detailed response to each sub-category, is there a reply to the effect of requesting documents that fit within the overarching words of Category 1 that do not fit into the sub-categories. BFM submits that it is passing strange and quite unfair at trial for it to be challenged in this way: it has responded to every sub-category it has been asked about, without anything further being said. Further, the nature of the sub-categories is so comprehensive as a whole that there is not anything else to provide.
2. BFM submits that it cannot now be said that there has been no response to a request for production. Category 1 has been taken as a series of sub-requests which have been responded to. Accordingly, the Court should conclude that Category 1 has been responded to and should not make an order for Revised Category 1 on the ground that there has been no compliance with a previous request.
3. BFM also submits that it is notable that Categories 2 to 7 are no longer pressed. Mr Zhai's explanation is that Mr Curtis produced some profit and loss statements in his 24 October affidavit, so he does not need to press Categories 2 to 7. However, BFM submits that it is plain from Mr Curtis' affidavit that the statements produced in that affidavit were generated for the purpose of providing to Mr Zhai and that they were not pre-existing documents. BFM says that this explanation goes to the withdrawal of Category 7, but not to Categories 2 to 6 or the sub-categories for Category 1, which until it received Mr Zhai's written submissions were apparently still in issue.
4. BFM says that there have been detailed requests for a large number of categories, which were all responded to, seemingly to Mr Zhai's ultimate satisfaction where not much of the content of Mr Curtis' affidavit is new. In those circumstances, it says that it is unreasonable for BFM to be vexed at the hearing with Revised Category 1 on the basis that Mr Zhai says BFM only responded to the sub-categories. BFM contends that a plaintiff who genuinely wanted to inquire as to whether there were any further documents, now that the sub-categories have been dealt with, only needed to ask that question, and Mr Zhai did not. BFM submits that in exercising its discretion, the Court can inquire whether the process of seeking the order has been reasonable, or whether the culmination of that process in the submission made at the hearing on a basis not previously put by Mr Zhai puts an unreasonable burden on a trustee in the context where it has previously provided documents and given explanations.
5. BFM says it is not reasonable to say that there has been non-compliance by it, and there is nothing identified by Mr Zhai that is a trust document likely to have been relied on that has not been produced.

F.2.3 Parties' specific submissions regarding the Erceg factors

1. Insofar as the Erceg factors are concerned, I have summarised the parties' submissions in respect of Revised Category 1 documents in the below table:

These are clearly trust documents, so this factor is met

Given previous iterations of the category, documents requested by plaintiff were not all trust documents. There has been a detailed response or provision of documents for each of the previous sub-categories within Category 1, and plaintiff has been unable to say what else falls within Revised Category 1 that has not been addressed within the sub-categories

Defendant emphasises that plaintiff's counsel said at an earlier hearing that the plaintiff wants the documents as it may want to amend the statement of claim. It is entirely appropriate for a beneficiary to want documents to see if trust has been properly administered. There is a heightened interest to monitor here because of potential for conflict of interest

Manner in which trust documents have been pursued by plaintiff is relevant to the context for the request. Here, plaintiff's repeated requests despite documents already provided or responses given mean that order should not be made. Plaintiff's repeated requests are a fishing expedition or substitute for non-party discovery. Seeking to inspect trust documents to determine whether there is a case is an exception to inspection under proprietary approach[24] and disqualifying under discretionary approach.[25]

This is a unit trust, not a discretionary trust. Plaintiff holds 5 million of 16 million units, so nature of interest is significant and weighs in favour of access

The terms of the Trust Deed are important - here, the clauses point strongly to a beneficiary being prevented from interfering with the Fund's business

There are no difficulties regarding confidentiality here, as arrangements have previously been made

There has been no suggestion of any practical difficulties

Plaintiff's framing of the category is for documents relied upon when making decisions rather than documents minuting decisions made

There is no particular impact on the trustee here or on beneficiaries as a whole. To the contrary, it is in their interests as a whole for the plaintiff to be able to ascertain whether the trust is being properly administered

Process of defendant responding to repeated requests has been extensive and costly. There is a limit to what one beneficiary can be permitted to do when other beneficiaries are not pursuing a similar course, when it has an impact on the financial position of the trust and on other beneficiaries as a consequence. The current request is made in disregard of previous iterations of the same request

There has already been confidentiality undertakings given regarding some documents provided, can be replicated if required

If this is a concern, then arrangements can be made

1. This judgment is in respect of the trial of the separate question, being a trial of the Trust Documents Access Allegation as set out in the further amended statement of claim. Essentially, Mr Zhai alleges that he has a right (via either the proprietary or discretionary approach) to access trust documents to inspect and copy them, that BFM has a duty to provide him with that access, and that BFM has breached that duty by failing or refusing to allow him to inspect or copy the Outstanding Trust Documents.
2. In respect of Mr Zhai's alleged right to access trust documents and BFM's alleged duty to provide that access, I have already found in Issue 1 above that Mr Zhai does not have a proprietary right to access trust documents. Nonetheless, the discretionary approach may still apply. To the extent that the discretionary approach relies on a beneficiary's rights and a trustee's duties, then such framing still fits within the way in which the Trust Documents Access Allegation is pleaded. If it does not, then the question of whether BFM has failed or refused to allow Mr Zhai to inspect or copy the Outstanding Trust Documents is still relevant.
3. I agree with Mr Zhai's submission that the separate question should be run on the basis of what is set out in the further amended statement of claim, as set out at paragraph 71 above, but if that submission is intended to suggest that the long history of correspondence between the parties in relation to access to trust documents is not relevant, then I reject it. That correspondence is the evidence relied upon by both parties: by Mr Zhai to establish that he has asked for and not been given the Outstanding Trust Documents; and by BFM to establish the converse.
4. The correspondence between the parties in respect of Mr Zhai's requests for trust documents has been lengthy and protracted. There have been many disputes between the parties as to the Trust Documents Access Allegation.
5. In my view, the evidence establishes that it was abundantly clear, if not by the time of the letter from Holding Redlich to James IP Lawyers on 2 September 2025, then by the time BFM filed Mr Curtis' affidavit, that:

(a) BFM had either met Mr Zhai's requests for documents or provided sufficient explanation as to why certain documents or categories of documents had not provided;

(b) where documents were not provided, this was either because they were not trust documents or did not exist. In such instances, explanations for those positions were provided by BFM;

(c) many documents which BFM maintained were not trust documents were nonetheless provided, including by BFM obtaining them from other entities; and

(d) where the specific requests involved requests which had already been responded to by the provision of documents or an explanation that they did not exist, this was explained by BFM.

1. The correspondence and Mr Curtis' affidavit clearly establish that BFM has not failed or refused to provide Mr Zhai with access to the Outstanding Trust Documents. Each category of documents has been specifically and satisfactorily addressed by BFM.
2. By the written and oral submissions made on his behalf, it is clear that Mr Zhai no longer contends otherwise, with the exception of the chapeau to Category 1 of the Outstanding Trust Documents (which is what constitutes Revised Category 1).
3. Mr Zhai has not established that BFM has refused to provide trust documents in Revised Category 1. The evidence establishes that no complaint was made by Mr Zhai, until trial, that there were documents remaining in Category 1 which had not been provided by reason of them falling within the chapeau but not the sub-categories. I accept that Category 1 is drawn on an 'including but not limited to' basis in respect of the sub-categories. However, it still behoves Mr Zhai to establish that there are further documents falling within Category 1 that have not been provided. He has not done so. I accept BFM's submissions as set out in paragraphs 83 and 84 above. The complaint was not made prior to trial. Even at trial, the plaintiff could not articulate what documents fell within Revised Category 1 which it had not been provided with or an adequate explanation for non-production given. I should note that I do not necessarily agree with BFM's submission as set out at paragraph 77(c) above. The decisions to vary the Trust Deed and to invoke the force majeure clause to suspend interest payments and redemptions are, at the very least, decisions concerning the administration of the Fund. However, that distinction does not matter for the purposes of this application, as such documents are covered by other categories of the Outstanding Trust Documents and have either been provided or do not exist.
4. On the basis of what is set out in paragraphs 89 to 96 above, the alleged failure to provide access to trust documents has not been made out.
5. Generally speaking the Court has jurisdiction to make orders that a trustee provide a beneficiary with access to trust documents, even if it has not been established that the trustee has refused access. Naturally, beneficiaries would not usually come before the Court seeking access to trust documents if they had not already sought and been refused them. However, the point is that the discretionary approach does not rely, in a doctrinal sense, on there having been a failure to provide access to trust documents.
6. I accept BFM's submission that to obtain orders for provision of further documents given the extensive production already given, Mr Zhai must establish that those further documents are held by BFM, are trust documents within the broad meaning established in the authorities, and that they are documents which have not already been produced or shown to not exist.
7. Accepting for these purposes that the further documents are trust documents, the difficulty for Mr Zhai is that he has not been able to show what further documents in Revised Category 1 are held by BFM which have not already been produced or shown to not exist. This is a powerful reason to refuse to make the orders sought. The wording of Revised Category 1 is very general, and the matters raised by Mr Zhai as to why he seeks access to documents in that category reveal that many documents in the other categories of Outstanding Trust Documents would also fall within Revised Category 1.
8. The Erceg factors also come into play here. Focussing on those factors which were in contest between the parties, I make the following findings in respect of Revised Category 1:

(a) in respect of Erceg factor (a), that the documents are trust documents is not the end of the matter, as the plaintiff would have it. Even in Erceg, a distinction is drawn between different types of trust documents, as different considerations may apply. Here, it is unclear what documents are sought by Revised Category 1 in light of the production and responses already given;

(b) in respect of Erceg factor (b), I accept that Mr Zhai has a legitimate reason for seeking documents in Revised Category 1, as it is entirely appropriate for him to want access to documents so as to assure himself that the Fund has been properly administered. That such access may lead to him amending his claims in this proceeding is not a reason to refuse access. However, I also accept BFM's submission that the manner in which access has been pursued by Mr Zhai is relevant to the context for the request. In my view, pressing for Revised Category 1 at trial, with no complaint previously having been made as to it, means that an order should not be made;

(c) in respect of Erceg factor (c), I accept the submission that Mr Zhai's interest in the Fund is significant and that this weighs in favour of access. I do not think that the terms of the Trust Deed are of significant relevance here: the fact that the terms of the Trust Deed means that the discretionary rather than the proprietary approach applies is not a reason to refuse to make an order, given that the Erceg factors only apply to the discretionary approach. However, I do accept that BFM's submission that the terms of the Trust Deed which point to a beneficiary being prevented from interfering with the Fund's business may be relevant. I assume that by this, BFM is referring to the extensive correspondence between the parties regarding access to trust documents, which it says has caused it to incur significant legal costs and has also taken up its officers' and employees' time. However, that is more relevant to Erceg factor (g); and

(d) in respect of Erceg factor (g), in this case I consider that Mr Zhai's repeated requests has been costly and time-consuming for BFM and that this has had an impact on BFM and on other beneficiaries of the Fund in the manner contended for by the defendant.

1. Balancing the Erceg factors, I am not inclined to make the orders sought by Mr Zhai.
2. There is a further reason why I will not make the orders sought by Mr Zhai. In circumstances where he has not articulated what documents fall within Revised Category 1 that are documents likely to be in BFM's possession which it has not already produced or explained do not exist, and in light of his previous reluctance to accept explanations given to him, such orders are likely to be productive of further disputation between the parties. That is not in the interests of the other beneficiaries of the Fund.

1. For the above reasons, there will be judgment for BFM in respect of the Trust Documents Access Allegation.
2. The parties are to confer regarding a form of orders to give effect to this judgment, including matters such as costs. To that end, by 10 December 2025, the parties are to have conferred and provided to my Chambers:

(a) an agreed form of orders; or

(b) if agreement has not been reached, each party's preferred form of orders.

1. The proceeding will be listed for 12 December 2025 for the making of orders pursuant to the previous paragraph and for directions as to the further conduct of the proceeding.

[1] The Fund was created by a deed dated 24 March 2015 (Trust Deed).

[2] The plaintiff had sought access to seven categories of trust documents in a summons dated 5 September 2025 (Summons). After canvassing the Summons at a directions hearing on 3 October 2025, by the orders made that day, the relief sought in the Summons effectively became the trial of a separate question of all requests for inspection and copies of documents made up to 5 September 2025, with the amended statement of claim to be further amended so that the trust documents sought in the pleading mirrored those sought in the Summons.

[3] These requests and responses are pleaded in some detail, however I have not reproduced that here, as these matters are discussed later in this judgment.

[4] The Outstanding Trust Documents are particularised: I will set these out shortly.

[5] I assume that Warde Street is an associated entity of BPG.

[6] Deutsch v Trumble [2016] VSC 263; (2016) 52 VR 108, 125 [66] (Hargrave J); Chan v Valmorbida Custodians Pty Ltd [2020] VSC 590, [71] (Delany J) (Chan v Valmorbida).

[7] Land v Prideland Equity Pty Ltd [2024] VSC 557, [22] (citations omitted).

[8] Rouse v IOOF Australia Trustees Limited [1999] SASC 181; (1999) 73 SASR 484, 499 [100]-[101] (Doyle CJ).

[9] [2015] NSWSC 216 (Bergin CJ in Eq) (AIT).

[13] [1986] VicRp 9; [1986] VR 90 (Brooking J).

[17] [2014] VSC 290; (2014) 42 VR 325.

[19] (1992) 29 NSWLR 405.

[22] [2017] NZSC 28; (2017) 1 NZLR 320 (Erceg).

[24] Re Londonderry's Settlement [1965] Ch 918, 938 (Salmon LJ); Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 (Sheller JA); Mandie v Memart Nominees Pty Ltd [2014] VSC 290; (2014) 42 VR 325 (Macaulay J).

[25] Smorgon v ES Group Operations Pty Ltd as Trustee of the ES Group Operating Trust No 1 (2021) 64 VR 146, 189 (M Osborne J) [154].