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CITE

Notable Unreported Decision

LM Investment Management Ltd (in liq) v Whyte[2023] QSC 132Kelly J
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LM Investment Management Ltd (in liq) v Whyte[2023] QSC 132

SUPREME COURT OF QUEENSLAND

CITATION:	LM Investment Management Ltd (in liquidation) & Ors v Whyte [2023] QSC 132
PARTIES:	LM INVESTMENT MANAGEMENT LIMITED (IN LIQUIDATION) ACN 077 208 461 (first applicant) LM INVESTMENT MANAGEMENT LIMITED (IN LIQUIDATION) ACN 077 208 461 AS RESPONSIBLE ENTITY OF THE LM FIRST MORTGAGE INCOME FUND ARSN 089 343 288 (second applicant) LM INVESTMENT MANAGEMENT LIMITED (IN LIQUIDATION) ACN 077 208 461 AS RESPONSIBLE ENTITY OF THE LM INSTITUTIONAL CURRENCY PROTECTED AUSTRALIAN INCOME FUND (third applicant) LM INVESTMENT MANAGEMENT LIMITED (IN LIQUIDATION) ACN 077 208 461 AS RESPONSIBLE ENTITY OF THE LM CURRENCY PROTECTED AUSTRALIAN INCOME FUND (fourth applicant) v DAVID WHYTE AS RECEIVER OF LM INVESTMENT MANAGEMENT LIMITED (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 077 208 461 AS RESPONSIBLE ENTITY OF THE LM FIRST MORTGAGE INCOME FUND ARSN 089 343 288 (respondent)
FILE NO/S:	BS No 14389 of 2022
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 June 2023
DELIVERED AT:	Brisbane
HEARING DATE:	27 April 2023
JUDGE:	Kelly J
ORDERS:	The respondent’s application filed 13 April 2023 is dismissed. I will hear the parties as to costs and further directions for the conduct of the proceeding.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the second applicant is the responsible entity of a registered managed investment scheme (‘the Fund’) – where the first applicant is liquidator of the second applicant – where the respondent was appointed to ensure the Fund was wound up in accordance with its constitution – where the first applicant commenced proceedings together with the second applicant, as well as the third and fourth applicants as unit holders in the Fund, against the respondent – where the applicants contend that the respondent lacks power to charge the Fund with payment of an adverse costs liability arising out of proceedings commenced by the respondent in the name of the second applicant and cause the second applicant to be indemnified out of the Fund in respect of that liability – where the respondent applied to strike out the applicants’ amended statement of claim with no leave to replead on the basis that it disclosed no reasonable cause of action – whether the applicants’ amended statement of claim discloses no reasonable cause of action and should be struck out Corporations Act 2001 (Cth) Trusts Act 1973 (Qld), s 8 Uniform Civil Procedure Rules 1999 (Qld) Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, cited Bruce v LM Investment Management Ltd (in liq) [2019] QSC 126, cited Bruce & Anor v LM Investment Management Ltd & Ors (2013) 94 ACSR 684; [2013] QSC 192, related Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1, cited Dixon v Dixon (No 2) [2022] NSWSC 944 Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Dobrijevic (No 3) [2017] NSWCA 109, cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, cited In re Beddoe [1893] 1 Ch 547 LM Investment Management Ltd v Drake [2019] QSC 281, related LM Investment Management Ltd (receiver apptd) (in liq) v Drake [2020] QSC 265, related 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; [2008] HCA 42, cited Nolan v Collie (2003) 7 VR 287; [2003] VSCA 39, cited Olsen v James [2020] NSWSC 1015, cited Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54, cited Park v Whyte (No 3) [2018] 2 Qd R 475; [2017] QSC 230, related Park v Whyte [2015] QSC 283, related Re Whitehouse (1982) Qd R 196; [1981] QSC 245, cited Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319; [1945] HCA 37, cited
COUNSEL:	J Peden KC, with D Clarry, for the applicant D O'Brien KC, with D Ananian-Cooper, for the respondent
SOLICITORS:	Russells for the applicant Gadens for the respondent

[1]
The respondent (“Mr Whyte”) applies to strike out the applicants’ amended statement of claim filed 28 March 2023 (“the pleading”). The interlocutory application does not specify reliance upon any part of r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). The order sought is that the pleading be struck out “without leave to replead”. As the arguments developed, the basis for the order was identified as being that the pleading disclosed no reasonable cause of action.^[1]

The background to this proceeding

[2]
In 1999, the LM First Mortgage Income Fund (“the Fund”) was established as a managed investment scheme under the Corporations Act 2001 (Cth) (“the Corporations Act”). The Fund invested by lending upon the security of mortgages to borrowers who developed real property. LM Investment Management Ltd (in liquidation) (“LMIM”) is the responsible entity of the Fund. The managed investment scheme was constituted as a trust of which LMIM was trustee both under the constitution of the scheme and under the Corporations Act.^[2]
[3]
On 19 March 2013, voluntary administrators were appointed to LMIM.
[4]
In July 2013, Dalton J heard applications concerning LMIM and the Fund. Amongst the issues then ventilated were issues concerning whether, and by whom, the Fund should be wound up. On 8 August 2013, her Honour delivered judgment and made relevant orders which can be set out as follows:

“1. Pursuant to section 601ND(1)(a) of the Corporations Act … [LMIM] …in its capacity as Responsible Entity of the [Fund] is directed to wind up the [Fund] subject to the orders below.

Pursuant to section 601NF(1) of the [Corporations Act], [Mr Whyte] … is appointed to take responsibility for ensuring that [the Fund] is wound up in accordance with its constitution (“the Appointment”).
Pursuant to section 601NF(2), … Mr Whyte;-

(a)
have access to the books and records of LMIM which concern the [Fund];

(b)
be indemnified out of the assets of the [Fund] in respect of any proper expenses incurred in carrying out the Appointment;

(c)
be entitled to claim remuneration in respect of the time spent by him and by employees of BDO who perform work in carrying out the Appointment at rates and in the sums from time to time approved by the Court and indemnified out of the assets of the [Fund] in respect of such remuneration.

Nothing in this Order prejudices the rights of:

(a)
Deutsche Bank AG pursuant to any securities it holds over LMIM or the [Fund]; or

(b)
the receivers and managers appointed by Deutsche Bank AG, Joseph David Hayes and Anthony Norman Connelly.

Pursuant to sections 601NF (2) of the [Corporations Act], Mr Whyte is appointed as the receiver of the property of the [Fund].
Pursuant to sections 601 NF (2) of the [Corporations Act], Mr Whyte have, in relation to the property for which he is appointed receiver pursuant to paragraph 5 above, the powers set out in section 420 of the [Corporations Act].
Without derogating in any way from the Appointment or the Receiver's powers pursuant to these Orders, Mr Whyte is authorised to:

(a)
take all steps necessary to ensure the realisation of property of [the Fund] held by [LMIM] as Responsible Entity of [the Fund] by exercising any legal right of [LMIM] as Responsible Entity of the [Fund] in relation to the property, including but not limited to:

(i)
providing instructions to solicitors, valuers, estate agents or other consultants as are necessary to negotiate and/or finalise the sale of the property;

(ii)
providing a response as appropriate to matters raised by receivers of property of LMIM as Responsible Entity of the [Fund] to which receivers have been appointed;

(iii)
dealing with any creditors with security over the property of the [Fund] including in order to obtain releases of security as is necessary to ensure the completion of the sale of property;

(iv)
appointing receivers, entering into possession as mortgagee or exercising any power of sale; and

(v)
executing contracts, transfers, releases, or any such other documents as are required to carry out any of the above; and

(b)
bring, defend or maintain any proceedings on behalf of [the Fund] in the name of [LMIM] as is necessary for the winding up of the [Fund] in accordance with clause 16 of its constitution, including the execution of any documents as required and providing instructions to solicitors in respect of all matters in relation to the conduct of such proceedings including, if appropriate, instructions in relation to the settlement of those actions.”

[5]
In making these orders, her Honour concluded that it was just and equitable to direct LMIM to wind up the Fund and appointed Mr Whyte to take responsibility for the winding up of the Fund. A relevant part of the Reasons may be set out as follows:

“The provision at s 601ND(1) which allows a court to direct that the responsible entity winds up a scheme, and the provision at s 601NF(1) which allows a court to appoint a person to take responsibility for ensuring a registered scheme is wound up in accordance with its constitution do not, to my mind, sit happily together. In particular they give the distinct potential for two separate sets of insolvency practitioners to charge a distressed fund. My view in this case is that Mr Whyte should in substance and effect conduct the winding up of the [F]und. … The fact of the matter is that the [F]und has reached a point where it must be wound up. I will appoint Mr Whyte receiver of the property of the [F]und under s 601NF(2) of the Act.”^[3]

[6]
On 19 December 2014, Mr Whyte caused LMIM, as the responsible entity of the Fund, to start a proceeding against various directors of LMIM, LMIM in its own right and the trustee of a related fund, the LM Managed Performance Fund (“the Director proceeding”). In the Director proceeding, damages were sought reflecting the amount paid away to the LM Managed Performance Fund from settlement proceeds obtained from a borrower from both the Fund, as first mortgagee, and the LM Managed Performance Fund, as second mortgagee. It was alleged that the payment to the second mortgagee was a breach of duties owed by LMIM and its Directors to the members of the Fund, which should have benefited as first mortgagee.
[7]
By in or about July 2015, LMIM was being wound up in insolvency as a company under the Corporations Act. That winding up was separate to the winding up of the Fund as a managed investment scheme.
[8]
In Park v Whyte,^[4] Jackson J considered questions arising under the Corporations Act and the Dalton J orders concerning the powers and responsibilities of LMIM and Mr Whyte in the context of the winding up of the Fund and the simultaneous winding up of LMIM. His Honour considered the duties and powers of LMIM and its liquidators on the one hand and the duties and powers of Mr Whyte on the other hand.
[9]
Jackson J relevantly observed:

“[33] The [Dalton J] orders … give to [Mr Whyte] power to deal with the assets of the [Fund] so as to collect and realise those assets. That is what he has been doing, subject to the rights of a secured creditor and the receivers appointed by that creditor.

[34] But that approach will not readily solve all the problems that arise when the responsible entity charged with the responsibility under s 601NE(1) is also a company in liquidation, for the reasons that follow.

[35] In a practical sense, the winding up of the [Fund] requires that the debts of [LMIM] properly incurred as responsible entity and trustee (and other debts properly incurred by [Mr Whyte]) be ascertained and paid from the property of the [Fund] held on trust. The debts of [LMIM], including those it incurred as responsible entity and trustee for the [Fund], are liabilities that the liquidators would ordinarily deal with by the process of proofs of debt in the winding up of [LMIM].

[36] The liquidators are under a duty to do so under the relevant provisions of the [Corporations Act].

[37] Those debts properly incurred by [LMIM] as trustee would ordinarily be dealt with by reference to a trustee’s right of indemnity, whether by way of exoneration or recoupment, from the assets of the trust.

[38] In Re Obie Pty Ltd [1984] 1 Qd R 371, Thomas J said:

‘The property of a company which passes into the custody and control of a liquidator upon a winding up is commonly referred to as the “available assets” of the company. These comprise the items of property (including choses in action) which the liquidator must get in and in due course apply …. However the available assets do not include property which the company holds on trust….’

[39] Where a company being wound up in insolvency carried on business as trustee of a trust, the process of the liquidator realising the assets of the company should reflect the legal truth that the assets of the trust are not beneficially the property of the company, but the company’s right of indemnity and the lien that supports that right for debts properly incurred as trustee support a practical approach to the realisation of the assets held on trust and the use of the proceeds to indemnify the company trustee for properly incurred debts.

[40] Section 601FH(a) of the [Corporations Act] expressly provides that a provision of a registered scheme’s constitution or other instrument that would deny a responsible entity that is being wound up a right to be indemnified out of the scheme property that it would have had if the company were not being wound up is void. In Queensland, there is a cognate provision that applies to a trust under the Trusts Act 1973 (Qld).

[41] As well, s 601FH(b) provides that the right of the company to be indemnified out of the scheme property may only be exercised by the liquidator of the company. In this case, that is, the liquidators of the applicant.

[42] Absent an identified source of power to the contrary, the [Mr Whyte] has no power to deal with the debts of [LMIM] in the winding up of the applicant, including those debts incurred as responsible entity or trustee, and no power to deal with [LMIM’s] right of indemnity out of the scheme property. The powers of [LMIM] in those respects are to be exercised by the liquidators.”

[10]
Jackson J went on to observe that the distribution of powers between LMIM and Mr Whyte fell to be ascertained by reference to the operation of the Dalton J orders. His Honour explained the operation of the Dalton J orders as follows:

“[53] First, par 1 directs [LMIM] to wind up the [Fund] subject to the later paragraphs of the order. The qualification is important.

[54] Second, par 2 appoints [Mr Whyte] to take responsibility for ensuring that the [Fund] is wound up. There is an unfortunate nuance introduced by the word ‘ensuring’, because it is arguably consistent with [LMIM] having the primary role to wind up and [Mr Whyte] having a secondary role of ensuring that it is done. However, that is not what is intended, having regard to the text and operation of par 1 and the subsequent paragraphs of the [Dalton J] orders. The explanation lies in the language of s 60NF(1) itself, which refers to an order appointing a person ‘to take responsibility for ensuring’ the winding up. In my view, that language does not require that [Mr Whyte’s] role is to be a secondary role. It depends on the orders that were made.

[55] Third, par 5 appointed [Mr Whyte] as the receiver of the property of [the Fund] and par 6 gave him the powers set out in s 420 of the [Corporations Act]. There is a disconformity in that form of order, because the powers in s 420, on their face, relate to the ‘property of a corporation’ and other aspects of a corporation’s affairs. However, in context, par 6 should be construed to confer those powers upon [Mr Whyte] in relation to the scheme property of the [Fund].

[56] There are two important powers under s 420. Under s 420(1) a receiver has power to do all things necessary or convenient to be done for or in connection with or as incidental to the attainment of the objectives for which the receiver was appointed. Further, under s 420(2)(h) a receiver has the power to carry on any business of the ‘corporation’.

[57] Neither party made a particular submission as to whether [Mr Whyte] has power to carry on the business of the [Fund] as a scheme for the purpose of winding up the [Fund]. However, the express power in par 7 to take all steps necessary to ensure the realisation of the property of the [Fund] is also consistent with the existence of such a power for the purpose of realising the scheme property.

[58] Fourth, par 7(a)(iii) authorised [Mr Whyte] to take all steps necessary to ensure the realisation of the scheme property of the [Fund] including dealing with any creditors with security over that property.

[59] In my view, none of the other powers of [Mr Whyte] is concerned with any power to pay or deal with creditors of [LMIM] in respect of debts incurred by [LMIM] as responsible entity and trustee for the [Fund].

[60] A usual consequence of a receiver’s power to carry on the business of a corporation is that the receiver has authority as agent of the corporation to pay pre-receivership debts. It might be suggested that the power conferred on [Mr Whyte] under s 420(2)(h), mutatis mutandis, has that effect in relation to the business of the [Fund], although none of the parties made that submission.

[61] However, a receiver’s authority as agent of the corporation to pay pre-receivership debts is sometimes said to be terminated when a winding up order is made against the corporation. It is unnecessary to essay the limits to that statement which clearly exist.

[62] That is because whatever be the true principle as to the extent of the powers of a receiver of a corporation that goes into liquidation, it is important in the present case not to look too far away from s 601NF(2) and the meaning and operation of an order appointing a receiver made under that subsection. If the order, properly construed, authorises [Mr Whyte] to carry on the business of the [Fund], in my view it follows that it is intended that [Mr Whyte] have the power to pay the debts of [LMIM] incurred in carrying on that business. Having regard to par 7(a), in my view, that power is conferred by the order at least in relation to taking all steps necessary to ensure the realisation of the property of the [Fund].

[63] And, as previously stated, par 1 of the [Dalton J] orders directing [LMIM] to wind up the [Fund] is subject to paras 6 and 7 of the order.

[64] [Mr Whyte’s] counsel strongly pressed the contention that the effect of making par 1 subject to the other orders of the [Dalton J] orders, including par 2 appointing [Mr Whyte] and par 5 conferring on him the power under s 420(1) of the [Corporations Act], effectively displaces [LMIM’s] responsibility to ensure that the scheme is wound up under s 601NE(1).

[65] The parties positions were framed in correspondence exchanged before the hearing of the application and refined by their submissions during the hearing. So, for the liquidators and [LMIM] it was submitted that [Mr Whyte’s] powers and functions were those of a receiver appointed to collect and realise the scheme property, after which he must relinquish possession of that property to [LMIM]. In my view, that is not what the existing orders provide or mean on their proper construction. There is no provision that possession of the scheme property is to be transferred to [LMIM].

[66] For [Mr Whyte] it was submitted that [LMIM’s] role in the winding up of the scheme was limited to not much more than maintaining its suspended financial services licence. In my view, that is not what the [Dalton J] orders provide or mean on their proper construction. There is no provision that the role of [LMIM] is to be so limited.”

[11]
Finally, Jackson J observed:

“[78] In my view, the court also has power under s 601NF(2) to make a necessary order as to the mechanism to deal with the right of indemnity as a liability to be paid from the assets of the [Fund], particularly having regard to the provision in s 601FH(b) that the right of indemnity may only be exercised by the liquidators of [LMIM].

[79] At the hearing of the application, I requested the parties to give thought to the form of an appropriate process to be framed in an order under s 601NF(2). It seems to me that the process should require [LMIM] to identify debts or claims for which it claims to be entitled to an indemnity and to submit the same with any reasonably requested information to [Mr Whyte]. [Mr Whyte] as receiver should be empowered by order to admit or reject the claimed right against the assets of the [Fund]. If necessary, either party should be able to apply for the Court’s approval of the outcome or determination of any dispute.”

[12]
On 17 December 2015, Jackson J made relevant orders as follows:

“2. Subject to the matters expressly set out in this Order, nothing in this Order derogates from the powers and rights conferred upon [Mr Whyte] by [the Dalton J orders] … as the person appointed:

(a)
to take responsibility for ensuring that the [Fund] is wound up in accordance with its constitution (“the Appointment”); and

(b)
as the receiver of the property of the [Fund].

Pursuant to section 601NF(2) of the Corporations Act … Mr Whyte is empowered to determine, in accordance with paragraphs 4 to 10 herein, whether, and if so to what extent, [LMIM] is entitled to be indemnified from the property of the [Fund] in respect of any expense or liability of, or claim against, LMIM in acting as Responsible Entity of the [Fund].
The First Applicants (“the Liquidators”) are directed to: -

(a)
ascertain the debts payable by, and the claims against, LMIM in accordance with the Act;

(b)
adjudicate upon those debts and claims in accordance with the provisions of the Act;

(c)
identify whether LMIM has a claim for indemnity from the property of the [Fund] in respect of any, or any part of any, debt payable by or claim against LMIM which is admitted by the Liquidators in the winding up of LMIM (each such claim for indemnity referred to below as a “Creditor Indemnity Claim”);

(d)
identify whether LMIM has (at the date of this Order and from time to time) a claim for indemnity from the property of the [Fund] in respect of any, or any part of any, expense or liability incurred by John Richard Park and Ginette Dawn Muller in acting as administrators or liquidators of LMIM (whether incurred in their own name or in the name of LMIM) insofar as the expense or liability was or is incurred in connection with LMIM acting as Responsible Entity for the [Fund] (each such claim for indemnity referred to below as an “Administration Indemnity Claim”); and

(e)
identify whether LMIM has a claim for indemnity from the property of the [Fund] in respect of any, or any part of any, other expense or liability incurred and paid by LMIM in its capacity as Responsible Entity for the [Fund] or by John Richard Park and Ginette Dawn Muller in acting as administrators or liquidators of LMIM (whether incurred in their own name or in the name of LMIM) insofar as the expense or liability was or is incurred in connection with LMIM acting as Responsible Entity for the [Fund] (being an expense or liability to which paragraphs 4(c) and 4(d) above do not apply) (each such claim for indemnity referred to below as a “Recoupment Indemnity Claim”).

Within sixty days of the date of this Order the Liquidators must notify Mr Whyte in writing of any Administration Indemnity Claim and any Recoupment Indemnity Claim identified by the Liquidators as at the date of this Order.
Within 14 days after-

(a)
any debt or claim is admitted by the Liquidators in the winding up of LMIM and, in respect of such debt or claim, a Creditor Indemnity Claim is identified by the Liquidators;

(b)
any Administration Indemnity Claim (being one to which paragraph 5 of this Order does not apply) is identified by the Liquidators; or

(c)
any Recoupment Indemnity Claim (being one to which paragraph 5 of this Order does not apply) is identified by the Liquidators,

the Liquidators must notify Mr Whyte in writing of such claim.

When notifying Mr Whyte of a claim in accordance with paragraphs 5 or 6 of this Order (each such claim for indemnity referred to below as an “Eligible Claim”), the Liquidators must: -

(a)
Provide Mr Whyte with: -

(i)
(if the Eligible Claim is a Creditor Indemnity Claim) a copy of the relevant proof of debt and supporting documentation relating to the Eligible Claim; and

(ii)
Such other information the Liquidators consider relevant to LMIM’s claim for indemnity from the property of the [Fund];

(b)
Within 14 days of receipt of a request from Mr Whyte pursuant to paragraph 8(a) below for further information in respect of an Eligible Claim, provide such reasonably requested further information to Mr Whyte.

Mr Whyte is directed to: -

(a)
Within 14 days of receipt of an Eligible Claim, request any further material or information he reasonably considers necessary to assess the Eligible Claim;

(b)
Within 30 days of receipt of an Eligible Claim or of the information requested in accordance with paragraph 8(a) above (whichever is the later): -

(i)
accept the Eligible Claim as one for which LMIM has a right to be indemnified from the property of the [Fund]; or

(ii)
reject the Eligible Claim; or

(iii)
accept part of it and reject part of it;

and give to the Liquidators written notice of his determination; and

(c)
If Mr Whyte rejects an Eligible Claim, whether in whole or in part, provide the Liquidators with written reasons for his decision when, or within 7 days after, giving notice of his determination.

Within 28 days of receiving notification from Mr Whyte of the reasons for rejecting, in whole or in part, any Eligible Claim (“Rejected Claim”), the Liquidators: -

(a)
may make an application to this Honourable Court for directions as to whether or not the Eligible Claim is or is not one for which LMIM has a right of indemnity out of the scheme property of the [Fund]; or

(b)
must notify the relevant creditor for any Rejected Claim of: -

(i)
Mr Whyte’s decision;

(ii)
any reasons provided by Mr Whyte for that decision;

(iii)
any material provided pursuant to paragraphs 6, 7 or 8 hereof; and

(iv)
whether they intend to make an application for directions in respect of the Rejected Claim pursuant to paragraph 9(a) hereof.

Mr Whyte has liberty to apply to the Court for direction in respect of any question arising in connection with his consideration or payment of an Eligible Claim.”

[13]
In April 2019, the Director proceeding went to trial. By the time of the trial, Mr Whyte had settled with the trustee of the LM Managed Performance Fund and no longer pressed claims against LMIM.
[14]
On 22 November 2019, the Director proceeding was dismissed.^[5]
[15]
On 6 December 2019, LMIM was ordered to pay the directors’ costs of the Director proceeding.
[16]
On 20 December 2019, Mr Whyte caused LMIM to appeal against the trial judgment.
[17]
On 31 January 2020, Mr Whyte filed an application seeking judicial advice as to whether he would be justified in prosecuting the appeal.
[18]
On 28 August 2020, this court refused Mr Whyte’s application and declined to provide the judicial advice.^[6]
[19]
On 23 September 2020, the parties to the appeal filed a Memorandum of Agreement to Dismissal of Appeal by which they agreed that the appeal should be dismissed by consent and LMIM should pay the costs of the appeal on the standard basis.
[20]
On 11 November 2022, Mr Whyte caused LMIM as the responsible entity of the Fund to settle the two adverse costs orders arising out of the Director proceeding and the discontinued appeal. The directors had claimed costs of $8,572,359.29 (inclusive of GST). The settlement required LMIM to pay the directors $5,000,000 (“the adverse costs liability”). Mr Whyte’s solicitor has deposed “the terms of the settlement further required payment of [the adverse costs liability] within seven days, if an objection was not received and an application was not filed by the liquidator of LMIM”.^[7]

An overview of this proceeding and the pleading

[21]
On 17 November 2022, this proceeding was commenced by LMIM’s liquidator together with LMIM in its capacity as the responsible entity of the Fund and the third and fourth applicants, as unit holders in the Fund. The proceeding was commenced by originating application. Following directions being made, the applicants filed and served the pleading.
[22]
In the proceeding, the applicants contend that Mr Whyte lacks power to charge the Fund with payment of the adverse costs liability. They also contend that charging the Fund with payment of the adverse costs liability, and paying that liability out of the Fund, is not justifiable or in the best interests of the Fund’s beneficiaries. The pleading’s prayer for relief relevantly seeks:
1. (a)
  Declarations to the effect that:
  1. Mr Whyte has no power to cause LMIM to indemnify itself out of the Fund in respect of the adverse costs liability; and
  2. Further or alternatively, Mr Whyte’s decision to charge the Fund with the adverse costs liability and intention to pay the adverse costs liability out of the Fund contravene s 601FH of the Corporations Act.
2. (b)
  A direction that Mr Whyte not pay the adverse costs liability out of the Fund.
[23]
Essentially, the applicants seek to challenge the power of Mr Whyte, as a court appointed receiver of the assets of the Fund, to compromise LMIM’s liability with third party judgement creditors and then have the compromised liability paid from the Fund as a liability properly incurred by LMIM as the responsible entity and trustee of the Fund.^[8] From this summary, it may be observed that the applicants’ contentions are directed to the powers of Mr Whyte and the special position of LMIM as a trustee.
[24]
The pleading sets out the relevant history by way of narration. The history includes the Dalton J orders, the chronology and outcome of the Director proceeding, the failed application for judicial advice, the discontinued appeal and the settlement of the adverse cost orders. The pleading also includes substantive allegations to the effect that:
1. (a)
  from prior to the commencement of the Director proceeding, there were sufficient funds in the Fund to enable LMIM to pay for Mr Whyte’s remuneration in respect of the winding up related appointment, LMIM’s legal costs in relation to the prosecution of the Director proceeding and the appeal;
2. (b)
  from the date when Mr Whyte decided to cause LMIM to commence the Director proceeding until the agreed dismissal of the appeal, Mr Whyte had sufficient resources, time and opportunity to cause LMIM to apply for judicial advice and directions in respect of the Director proceeding and appeal including whether or not the Director proceeding should be instituted and/or prosecuted;
3. (c)
  LMIM and Mr Whyte did not apply for judicial advice in respect of the Director proceeding or obtain such advice.
[25]
To the extent that specific allegations are made about the power of Mr Whyte, the pleading:
1. (a)
  references the Dalton J orders and, in particular, the winding up appointment and Mr Whyte having been authorised to bring, defend or maintain any proceedings on behalf of the Fund in the name of LMIM as was necessary for the winding up of the Fund in accordance with its constitution including providing instructions to solicitors in respect of all matters in relation to the conduct of such proceedings including, if appropriate, their settlement.
2. (b)
  alleges that by operation of s 601FH of the Corporations Act:

“(a) a right of LMIM to be indemnified out of … [the Fund] may only be exercised by LMIM’s liquidator … subject to the matters dealt with in the orders made by [Jackson J] on 17 December 2015;

(b)
absent an identified source of power, [Mr Whyte] has no power to deal with the debts of LMIM in the winding up of LMIM, including those debts incurred as responsible entity or trustee, and no power to deal with LMIM’s right of indemnity out of the scheme property comprising [the Fund];

(c)
there is no power for [Mr Whyte] to cause LMIM to indemnify itself out of [the Fund] for [the adverse costs orders].”

[26]
Beyond the specific allegations about power, the pleading relies upon the failure of Mr Whyte to seek judicial advice in relation to the Director proceeding in the context of making allegations of law to the effect that certain principles described as “the Beddoe Principles”^[9] apply to trustees namely:
1. (a)
  all litigation by trustees should be avoided, unless there is such a chance of success as to render it desirable in the interests of the trust that the necessary risk should be incurred;
2. (b)
  if there is doubt as to the wisdom of prosecuting or defending a lawsuit, trustees may resolve that doubt in the interests of the trust by applying for judicial advice and directions and ask the court whether the litigation should be prosecuted;
3. (c)
  a trustee who, without judicial advice and directions to do so, commences or defends a legal proceeding unsuccessfully, does so at the trustee’s own risk as regards the costs of that proceeding, even if the trustee acts on counsel’s opinion;
4. (d)
  when a trustee seeks to obtain such costs out of the assets of the trust, the trustee will not to be allowed to do so unless under very exceptional circumstances; and
5. (e)
  if a trustee commences or defends a legal proceeding unsuccessfully and without judicial advice and directions to do so, the trustee bears the onus of showing that the costs of the legal proceedings so incurred were properly and reasonably incurred.
[27]
Finally, the applicants call in aid s 8 of the Trusts Act 1973 (Qld) (“the Trusts Act”). The pleading alleges that decisions to charge the adverse costs liability to the Fund and any intention to pay the adverse costs liability out of the Fund to the Directors would be in the exercise of powers conferred on either LMIM, or in the alternative, Mr Whyte and are reviewable pursuant to s 8 of the Trusts Act. The applicants allege that Mr Whyte has not substantiated the grounds for charging the Fund or making the payment out of the Fund. They contend that charging the Fund with the adverse costs liability and paying that liability out of the Fund is not justified or in the interests of the Fund’s beneficiaries. They claim to be persons aggrieved or who have reasonable grounds to apprehend that they will be aggrieved by such conduct. The applicants rely upon s 8 of the Trusts Act as providing jurisdiction to this Court to require Mr Whyte to appear to substantiate the grounds for charging the adverse costs liability to the Fund and paying the adverse costs liability out of the Fund to the Directors.

Mr Whyte’s grounds for striking out the pleading

[28]
Mr Whyte submitted that “the proceeding” should be struck out essentially for five reasons. First, Mr Whyte has power to pay the adverse costs liability by reason of the Dalton J orders. Secondly, what the pleading described as the Beddoe Principles had no application to Mr Whyte, an officer of the court, who was specifically authorised to conduct litigation in the name of LMIM. Thirdly, the pleaded Beddoe Principles did not reflect the state of the law in relation to when an onus was cast upon a trustee. Fourthly, the applicants’ reliance on s 8 of the Trusts Act was “misguided and not correct”. Finally, the liquidator of LMIM had no authority to bring this proceeding in the name of LMIM.

Consideration

[29]
This is not an application for summary judgment. By seeking an order that the pleading be struck out with no leave to replead, Mr Whyte effectively seeks to summarily terminate the proceeding. In General Steel Industries Inc v Commissioner for Railways (NSW),^[10] Barwick CJ observed:

“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion … [a] plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.”^[11]

[30]
It is well recognised that there is the need for “exceptional caution” in exercising a power to summarily terminate a proceeding.^[12] To summarily terminate a proceeding, there needs to be a “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”.^[13] In Dey v Victorian Railways Commissioners,^[14] Dixon J said:

“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court … once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious …”.^[15]

[31]
The first issue concerns the powers conferred upon Mr Whyte by the Dalton J orders. For the purposes of this strike out application, the issue may be framed as whether there is a real question of fact or law in relation to Mr Whyte’s purported exercise of power to charge the adverse costs liability to the Fund and pay the adverse costs liability out of the Fund.
[32]
The pleading calls in aid that part of Jackson J’s reasons which observe “absent an identified source of power to the contrary, [Mr Whyte] has no power to deal with … [LMIM’s] right of indemnity out of the scheme property”. Whilst the pleading refers to Mr Whyte’s litigation power as conferred by paragraph 7(b) of the Dalton J orders (“the litigation power”), the applicants’ case is that the Dalton J orders did not confer power on Mr Whyte to act in relation to the Fund in the way he now proposes as regards the adverse costs liability. In this respect, the pleading expressly alleges that “there is no power for [Mr Whyte] to cause LMIM to indemnify itself out of [the Fund] for [the adverse costs liability]”.
[33]
In my consideration, there are real issues, involving issues of law and fact, as to whether the Dalton J orders conferred upon Mr Whyte, expressly or impliedly, a power to act in relation to the Fund in the way he now proposes as regards the adverse costs liability. Mr Whyte’s written submissions acknowledged that Jackson J was not called upon to consider the scope and operation of the litigation power.^[16] The legal issue involves a consideration of the substance of the Dalton J orders and their intended operation in quite unique circumstances. Those circumstances include, the Fund being wound up by LMIM and Mr Whyte being appointed to take responsibility for the winding up and being empowered to litigate on behalf of the Fund, in the name of LMIM, as was necessary for the winding up of the Fund. The legal issue may also extend to a consideration of the effect of the orders made by Jackson J on 17 December 2015, noting however that, subject to matters expressly set out within them, those orders were not intended to derogate from the Dalton J orders.
[34]
As regards the legal issue, the applicants have the benefit of reasoned conclusions by Jackson J that, “absent an identified source of power to the contrary”, Mr Whyte had no power to deal with the debts of LMIM in the winding up of LMIM, including those debts incurred as responsible entity or trustee, and no power to deal with LMIM’s right of indemnity out of the scheme property. Jackson J found that, “absent an identified source of power to the contrary”, those powers of LMIM fell to be exercised by LMIM’s liquidators. The pleading effectively alleges that there is no identified source of power to the contrary.
[35]
Mr Whyte submits that the litigation power is the “identified source of power to the contrary”. Implicitly, that submission, made in circumstances of a strike out application, contends that it is beyond serious argument that the litigation power authorised Mr Whyte to not just litigate in the name of LMIM but to cause LMIM to be indemnified out of the Fund for adverse costs orders. I reject that submission. The litigation power was expressed in terms that Mr Whyte was authorised to “bring … maintain … proceedings on behalf of the Fund in the name of LMIM … as was necessary for the winding up of the Fund in accordance with its constitution including providing instructions … in relation to the conduct of such proceedings including, if appropriate, their settlement”. The litigation power was expressly directed to necessary litigation. Whether it was intended to embrace LMIM’s right to be indemnified out of the Fund is a question of construction that warrants argument and careful consideration.
[36]
Further, whatever power was conferred, was arguably not unlimited or unconstrained. There is a real issue as to whether the litigation power was qualified or limited by the language “necessary for the winding up of the Fund”. When the Dalton J orders were made, her Honour was evidently aware that there might be claims able to be made but whether it was “rational to make them” would depend “on their prospects of success, likely cost and the likely prospect of recovering anything at the end of the day”.^[17] This consideration gives rise to the prospect of factual arguments about whether, even if the litigation power embraced LMIM’s right to be indemnified out of the Fund, the right was engaged in the present circumstances. For reasons which I have explained in relation to the Beddoe issues, the pleading alleges sufficient facts which, if not explained by Mr Whyte, would entitle a court to conclude that the adverse costs liability is a liability that was not properly incurred.
[37]
In my consideration, if Mr Whyte wishes to allege that the litigation power countenances the adverse costs liability being charged against, and paid out of, the Fund, he should plead the existence of the power, and the reasons why the power is engaged, as a basis for denying the applicants’ allegation that “there is no power for [Mr Whyte] to cause LMIM to indemnify itself out of [the Fund] for [the adverse costs liability ]”. That joinder of issue will then call for a trial as to the intended scope and operation of the litigation power in the pleaded circumstances.
[38]
The second issue concerns what the pleading describes as the Beddoe Principles. Mr Whyte submitted that the Beddoe Principles had no application to him as an officer of the court, who was specifically authorised to conduct litigation in the name of LMIM. He further submitted that the Beddoe Principles operated in limited circumstances involving a trustee in breach or a position of conflict. He emphasised that there was no allegation made to the effect that he or LMIM was in a position of breach or conflict. Finally, Mr Whyte submitted that the applicants were required, and had failed, to plead facts which demonstrated that the adverse costs liability was not properly incurred.
[39]
By operation of the Dalton J orders, Mr Whyte was appointed as the receiver of the property of the Fund. He was also authorised to bring litigation necessary for the winding up of the Fund. As such, he was an officer of the court and was entitled to resort to the court for necessary guidance. This court has a clear general jurisdiction to give its opinion, advice or direction to a receiver it has appointed.^[18]Further, s 96 of the Trusts Act confers jurisdiction upon this Court to give advice or directions to a trustee concerning “any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee”.
[40]
In my consideration, there is a real question as to whether, by reason of the litigation power, Mr Whyte was empowered to apply to this court, in the name of the trustee, LMIM, for advice or directions under s 96 of the Trusts Act about whether he was justified in commencing and conducting the Director proceeding. I consider it to be well arguable that Mr Whyte was implicitly empowered by the litigation power to seek judicial advice under the Trusts Act as to whether he should commence any particular piece of litigation in the name of LMIM. The pleading discloses a real issue as to whether Mr Whyte was entitled to avail himself of the protections available to a trustee in respect of the Director proceeding.
[41]
Rule 700 of the UCPR provides to the effect that where a trustee sues “unless the court orders otherwise”, the trustee is entitled to have the costs of the proceeding, that are not paid by someone else, paid out of the fund held by the trustee. That rule, as the words suggest, is only a general starting point. In Park v Whyte (No 3),^[19]Jackson J observed:

“In my view, r 700 operates in relation to legal costs of a proceeding so that a trustee is entitled to those costs from the fund held on trust unless the court otherwise orders. However, the considerations by which the court might otherwise order include those in [In re Beddoe]”.^[20]

[42]
In re Beddoe,^[21] Lindley LJ said:

“[A] trustee who, without the sanction of the Court, commences an action or defends an action unsuccessfully, does so at his own risk as regards the costs, even if he acts on counsel’s opinion; and when the trustee seeks to obtain such costs out of his trust estate, he ought not be allowed to charge them against his cestui que trust unless under very exceptional circumstances. If, indeed, the Judge comes to the conclusion that he would have authorised the action or defence had he been applied to, he might, in the exercise of his discretion, allow the costs incurred by the trustee out of the estate; but I cannot imagine any other circumstances under which the costs of an unauthorised and unsuccessful action brought or defended by a trustee could be properly thrown on the estate … I entirely agree that a trustee is entitled as of right to full indemnity out of his trust estate against all his costs, charges, and expenses properly incurred …. The words ‘properly incurred’ … are equivalent to ‘not properly incurred’ … But considering the ease and comparatively small expense with which trustees can obtain the opinion of a Judge of the Chancery Division on the question whether an action should be brought or defended at the expense of the trust estate, I am of opinion that if a trustee brings or defends an action unnecessarily and without leave, it is for him to show that the costs so incurred were properly incurred”.^[22]

[43]
In the same case, Bowen LJ observed:

“The principle of law to be applied appears unmistakeably clear. A trustee can only be indemnified out of the pockets of his cestuis que trust against costs, charges, and expenses properly incurred for the benefit of the trust — a proposition in which the word “properly” means reasonably as well as honestly incurred. While I agree that trustees ought not to be visited with personal loss on account of mere errors in judgment which fall short of negligence or unreasonableness, it is on the other hand essential to recollect that mere bona fides is not the test, and that it is no answer in the mouth of a trustee who has embarked in idle litigation to say that he honestly believed what his solicitor told him, if his solicitor has been wrong-headed and perverse. Costs, charges, and expenses which in fact have been unreasonably incurred, do not assume in the eye of the law the character of reasonableness simply because the solicitor is the person who was in fault. No more disastrous or delusive doctrine could be invented in a Court of Equity than the dangerous idea that a trustee himself might recover over from his own cestuis que trust costs which his own solicitor has unreasonably and perversely incurred merely because he had acted as his solicitor told him. If there be one consideration again more than another which ought to be present to the mind of a trustee, especially the trustee of a small and easily dissipated fund, it is that all litigation should be avoided, unless there is such a chance of success as to render it desirable in the interests of the estate that the necessary risk should be incurred. If a trustee is doubtful as to the wisdom of prosecuting or defending a lawsuit, he is provided by the law with an inexpensive method of solving his doubts in the interest of the trust. He has only to take out an originating summons, state the point under discussion, and ask the Court whether the point is one which should be fought out or abandoned. To embark in a lawsuit at the risk of the fund without this salutory precaution might often be to speculate in law with money that belongs to other people.”^[23]

[44]
In Macedonian Orthodox Community Church,^[24] the plurality,^[25] referred to In re Beddoe without disapproval^[26] and observed that the “warning that trustees who become involved, or wish to become involved, in litigation should seek the court’s sanction is the significant and … influential, aspect of In re Beddoe.”^[27] The plurality later said:

“In short, provision is made is made for a trustee to obtain judicial advice about the prosecution ... of litigation in recognition of both the fact that the office of trustee is ordinarily a gratuitous office and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee's duties. Obtaining judicial advice resolves doubt about whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation.”^[28]

[45]
In Olsen v James,^[29] Parker J referred to a “clear weight of authority” as being “to the effect that, at least where legal costs are concerned, a trustee’s indemnity extends only to expenses that are properly and reasonably incurred”.^[30] His Honour further concluded that “The onus is on the trustee, although he or she usually only has to satisfy the undemanding test of showing that the expenses in question were not improperly or unreasonably incurred”.^[31]
[46]
More recently, in Dixon v Dixon (No 2),^[32] Parker J has observed:

“The decision in Beddoe was referred to with apparent approval by the High Court in Macedonian Orthodox Community Church. … In this context, there is every reason to treat the failure to obtain advice as a factor which potentially goes to unreasonableness …. In Olsen … I discussed the general equitable principles which apply to the onus in a trustee’s claim for indemnity. I concluded … that the legal onus lies on the trustee to show that the expense in question has been reasonably and honestly incurred, but usually this is an undemanding test, but the onus of demonstrating reasonableness is not demanding; in usual circumstances, it only requires that the incurring of the expense was not unreasonable. …. Even if the trustee does not bear any onus, the Court may take a failure to obtain judicial advice into account, and if that failure is unexplained it is open to the Court to conclude that the trustee’s behaviour was unreasonable.”^[33]

[47]
The absence of an application for advice has been recognised as a matter “wholly relevant to the question of whether the trustee has ‘acted unreasonably’”.^[34]
[48]
Mr Whyte submitted that the Beddoe Principles should be limited in their operation to particular factual contexts involving allegations that a trustee had acted in breach of trust or from a position of conflict of interest.^[35] I discern no appreciable support for that submission from the authorities. In my respectful view, there is no clear basis for limiting the application of the principles underpinning In re Beddoe in that manner such as would justify summary intervention to prevent the applicants from submitting their case for trial. The engagement of the principles underpinning In re Beddoe requires careful regard to the facts of any particular case. In Park v Whyte (No 3), Jackson J warned that there is no bright line test to determine the circumstances in which a Beddoe application ought be made.^[36] In the same case, his Honour had earlier observed:

“In my view, it is important to recognise that Lindley LJ’s statement in Beddoe is not a distinct species of the trustee’s right to indemnity for expenses properly incurred. Rather, it articulates what considerations will or may be expected to establish that the legal costs incurred by a trustee in prosecuting or defending a particular proceeding are expenses properly incurred. The underlying informing principle is that a trustee is expected not to engage lightly in litigation that will or may incur costs that will diminish the trust property. The trustee is only to do so if the circumstances justify it. Lindley LJ’s statement of the relevant considerations informs what may be a liability or expense properly incurred in those circumstances.”^[37]

[49]
The final dispute about the Beddoe Principles concerned whether the pleading correctly identified the circumstances in which a trustee, for the purpose of claiming an indemnity, bears the onus of demonstrating that the costs of a legal proceeding were “properly and reasonably incurred”.
[50]
Mr Whyte placed significant reliance upon the Victorian Court of Appeal decision in Nolan v Collie^[38] in support of his submission that when a beneficiary seeks to deny a trustee its right of indemnity, the guiding principle is that “trustees should not be deprived of their right of reimbursement unless they have clearly been shown to have acted improperly, with the onus resting on those who seek to deny the right.”^[39] The actual passage from the judgment of Ormiston JA in Nolan v Collie reads as follows:

“Perhaps the rule will not pose difficulties where the issue relates merely to costs and expenses, although even in that area it has frequently been said that trustees should not be deprived of their right of reimbursement unless they have clearly been shown to have acted improperly, with the onus resting on those who seek to deny the right. But the rule relating to indemnification also applies to the incurring of liabilities and, by necessity, a considerable proportion of those must be incurred where in some way a trustee has been found to have acted in error.”^[40]

[51]
This statement appears in the judgment after his Honour had noted In re Beddoe as being one of the leading authorities which had “been cited and applied in Australia on numerous occasions”.^[41] One case referred to by Ormiston JA was Vacuum Oil Co Pty Ltd v Wiltshire,^[42] where Dixon J had said that an executor who has acted under appropriate authority had a “right to be indemnified out of the assets in respect of liabilities he has incurred in the proper performance of his duties or exercise of his powers.”^[43] In my consideration the passage in Nolan v Collie upon which Mr Whyte relies does not provide a compelling basis for a submission to the effect that in respect of liabilities, as distinct from costs and expenses, the onus always rests on the party seeking to dispute the right to indemnification. In the circumstances of this case, having regard to the matters pleaded, I consider that, at least for the purpose of the pleadings, an onus has shifted to Mr Whyte to allege facts which demonstrate that the adverse costs liability was properly incurred. The reasoning in Olsen and Dixon supports that conclusion as does the reasoning in Macedonian Orthodox Community Church which references In re Beddoe without any disapproval.
[52]
Mr Whyte candidly conceded that the decision whether to commence and conduct the Director proceeding was a decision of real significance in the affairs of LMIM. Against the background of that concession, the pleading relevantly alleges the following matters. The Director proceeding was commenced when Mr Whyte had sufficient resources, time and opportunity to cause LMIM to apply for judicial advice and he failed to do so. Mr Whyte was empowered to conduct litigation on behalf of the Fund in the name of LMIM which was “necessary for the winding up of the Fund”. Mr Whyte conducted the Director proceeding to trial and lost, giving rise to costs orders which have led to the adverse costs liability. Despite request, Mr Whyte has not explained or substantiated the grounds on which the Fund should be charged with the adverse costs liability and the adverse costs liability paid from the Fund. In these circumstances, charging the Fund with the adverse costs liability and paying that liability out of the Fund is not justifiable or in the best interests of the beneficiaries. Accepting these allegations in the pleading at face value, the failure of Mr Whyte to obtain judicial advice prior to the commencement, and indeed during the conduct, of the Director proceeding means that there is now doubt^[44] as to whether the adverse costs liability was properly incurred. In my consideration, these pleaded facts, if not answered, would entitle a court to find that the adverse costs liability was not properly incurred.^[45] In my consideration, the applicants have pleaded sufficient facts to enable their case to go to trial and it is now incumbent upon Mr Whyte to plead facts which are directed to justifying his recourse to the claimed right of indemnity.
[53]
The third ground concerns s 8 of the Trusts Act which materially provides:

“Any person who has, directly or indirectly, an interest, whether vested or contingent, in any trust property or who has a right of due administration in respect of any trust, and who is aggrieved by any act … or decision of a trustee or other person in the exercise of any power conferred by this Act or by law or by the instrument (if any) creating the trust, or who has reasonable grounds to apprehend any such act […] or decision by which the person will be aggrieved, may apply to the court to review the act, omission or decision, or to give directions in respect of the apprehended act … or decision; and the court may require the trustee or other person to appear before it and to substantiate and uphold the grounds of the act … or decision which is being reviewed and may make such order in the premises (including such order as to costs) as the circumstances require.”

[54]
The power of the court to review acts and decisions of trustees pursuant to this provision has been recognised as “quite broad”.^[46] In Re Whitehouse,^[47] Macrossan J observed of s 8:

“It seems to me that the power of the court under s. 8 to review a trustee’s acts and decisions is one which should not be narrowly construed. By this I mean that the jurisdiction should not be read down or unduly confined. On the other hand, I think it would be wrong to suggest that although the jurisdiction to undertake a review is wide, the court would lightly interfere with a discretionary decision made by a trustee. The courts will continue to bear in mind that discretionary trust powers are vested in trustees for the purpose of decision by them and the traditional reluctance to interfere with their decisions will, for good reason, continue. If, notwithstanding this reluctance, a proper case is made out, then I do not doubt that the court has wide power. Speaking for myself, I am not persuaded that it is possible or advisable to attempt to limit in advance the ambit of the cases in which the court will move under its new statutory power of review.”

[55]
Mr Whyte complained that the right of indemnity was not a power that a trustee exercises in the interests of beneficiaries and, for that reason, s 8 has no application. I reject that submission. According to its plain language, s 8 applies to decisions of a trustee and does not limit those decisions by reference to whether a decision is, or is not, made in the interests of the trustee or beneficiaries. Secondly, Mr Whyte submitted that s 8 was concerned with acts, omissions or decisions of a trustee which require the trustee to take into account, the interests of the trust’s beneficiaries. I reject that submission. It involves impermissibly making limitations which are not found in the express words of a provision conferring jurisdiction.^[48] It necessarily leads to a narrow construction of s 8 and it would not be appropriate on a strike out application to attempt to limit the ambit of the cases in which this court will move under s 8 to exercise the power of review.
[56]
Mr Whyte submitted that s 8 had no application because it relevantly applied to a power conferred by the Trusts Act or by the trust instrument and in the present case, Mr Whyte was acting in accordance with the Dalton J orders such that the review jurisdiction was not applicable.^[49] As I have indicated, there is, in my consideration, a real issue as to what power, if any, was conferred upon Mr Whyte in respect of the charging and payment of the adverse costs liability to, and out of, the Fund. Further, as a matter of substance, Mr Whyte is seeking to act in the name of LMIM as trustee in claiming indemnity from the Fund. To that extent, the right of indemnity arises under the Trusts Act or the relevant trust instrument. Finally, Mr Whyte submitted that the applicants had not pleaded “any basis upon which [Mr Whyte’s decision] to exercise LMIM’s right of indemnity might be reviewable”. I have already found that the pleaded facts, if not answered, would entitle a court to find that the adverse costs expenses were not properly incurred. In my consideration, the pleading has alleged sufficient facts to enable the claim for relief under the Trusts Act to proceed to a trial.
[57]
Finally, Mr Whyte submitted that, by reason of the litigation power, the first applicant was deprived of any “concurrent residual power” to “bring, defend or maintain such proceedings”. There is no substance in this submission. The litigation power was directed to the bringing of proceedings in the name of LMIM which were necessary for the winding up of the Fund. This proceeding is substantively concerned with issues directed to the powers of Mr Whyte and the special position of LMIM as trustee. This is not a proceeding contemplated by the litigation power. The Dalton J orders did not exclude the bringing of this type of proceeding.

Orders

[58]
The order I make is that Mr Whyte’s application filed 13 April 2023 is dismissed.
[59]
I will hear the parties as to costs and further directions for the conduct of the proceeding.

Footnotes

[1]The concession was made in oral argument (T1-9.25). Mr Whyte submitted that the application rose and fell on the pleading “as pleaded” (T1-3.25) and that the pleading should be struck out because it failed “to articulate a cause of action” (T1-4.34-38).

[2]Park v Whyte [2015] QSC 283 at [2].

[3]Bruce & Anor v LM Investment Management Ltd & Ors (2013) 94 ACSR 684 at 713 [121].

[4][2015] QSC 283.

[5]LM Investment Management Ltd v Drake [2019] QSC 281.

[6]LM Investment Management Ltd (receiver apptd) (in liq) v Drake [2020] QSC 265.

[7]Affidavit of Scott Couper (CFI 6) [23].

[8]Plaintiff’s outline of submissions [4].

[9]In re Beddoe [1893] 1 Ch 547.

[10](1964) 112 CLR 125.

[11]Ibid at 128–129.

[12]Ibid at 129.

[13]Agar v Hyde (2000) 201 CLR 552 at 576 [57].

[14](1949) 78 CLR 62.

[15]Ibid at 91.

[16]Respondent’s written submissions [23].

[17]Bruce & Anor v LM Investment Management Ltd & Ors (2013) 94 ACSR 684 at 691 [28].

[18]Bruce v LM Investment Management Ltd (in liq) [2019] QSC 126 at [13].

[19][2018] 2 Qd R 475.

[20] Ibid at 491 [56].

[21] [1893] 1 Ch 547.

[22] Ibid at 557–8.

[23] Ibid at 562.

[24]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 (‘Macedonian Orthodox Community Church’).

[25] Gummow ACJ, Kirby, Hayne and Heydon JJ.

[26] (2008) 237 CLR 66 at 86–87 [47].

[27] Ibid at 87 [48].

[28] Ibid at 93–94 [71].

[29] [2020] NSWSC 1015.

[30] [2020] NSWSC 1015 at [103].

[31] Ibid.

[32] [2022] NSWSC 944.

[33] Ibid at [75]–[78].

[34]Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Dobrijevic (No 3) [2017] NSWCA 109 at [42].

[35] Respondent’s written submissions [34].

[36] [2018] 2 Qd R 475 at 493 [64]–[66].

[37] Ibid at [58].

[38] (2003) 7 VR 287.

[39] Respondent’s written submissions [31].

[40]Nolan v Collie (2003) 7 VR 287 at 306 [50].

[41] Ibid at 304 [46] and 305 [47].

[42] (1945) 72 CLR 319.

[43] Ibid at 335.

[44]Macedonian Orthodox Community Church at 93 [71].

[45]Dixon v Dixon (No 2) [2022] NSWSC 944 at [78].

[46]Vance v MIM Coal Staff Fund Pty Ltd QSC, unreported 6 September 1999 at [14].

[47](1982) Qd R 196 at 203.

[48]Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 421.

[49]Mr Whyte cited Jaspers v Greenwood [2012] NZHC 2422.

Editorial Notes

Published Case Name:
LM Investment Management Ltd (in liquidation) & Ors v Whyte
Shortened Case Name:
LM Investment Management Ltd (in liq) v Whyte
MNC:
[2023] QSC 132
Court:
QSC
Judge(s):
Kelly J
Date:
16 Jun 2023
White Star Case:
Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Agar v Hyde	View on:JADE(2000) 201 CLR 552	2 citations Jump To Cite 1 - (2000) 201 CLR 552 Cite 2 - (2000) 201 CLR 552
Agar v Hyde	View on:JADE[2000] HCA 41	1 citation Jump To Cite 1 - [2000] HCA 41
Australia and New Zealand Property Trust v Bishop Irinej Dobijevic (No 3)	View on:JADE[2017] NSWCA 109	2 citations Jump To Cite 1 - [2017] NSWCA 109 Cite 2 - [2017] NSWCA 109
Bruce v LM Investment Management Limited	[2013] QSC 192	1 citation Jump To Cite 1 - [2013] QSC 192
Bruce v LM Investment Management Ltd (in liq)	[2019] QSC 126	2 citations Jump To Cite 1 - [2019] QSC 126 Cite 2 - [2019] QSC 126
Bruce v LM Investments Management Ltd	(2013) 94 ACSR 684	3 citations Jump To Cite 1 - (2013) 94 ACSR 684 Cite 2 - (2013) 94 ACSR 684 Cite 3 - (2013) 94 ACSR 684
Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand	View on:JADE(2008) HCA 42	1 citation Jump To Cite 1 - (2008) HCA 42
Dey v Victorian Railways Commissioners	View on:JADE(1949) 78 CLR 62	2 citations Jump To Cite 1 - (1949) 78 CLR 62 Cite 2 - (1949) 78 CLR 62
Dey v Victorian Railways Commissioners	View on:JADE[1949] HCA 1	1 citation Jump To Cite 1 - [1949] HCA 1
Dixon v Dixon (No 2)	View on:JADE[2022] NSWSC 944	3 citations Jump To Cite 1 - [2022] NSWSC 944 Cite 2 - [2022] NSWSC 944 Cite 3 - [2022] NSWSC 944
General Steel Industries Inc v Commissioner for Railways (NSW)	View on:JADE(1964) 112 CLR 125	2 citations Jump To Cite 1 - (1964) 112 CLR 125 Cite 2 - (1964) 112 CLR 125
General Steel Industries Inc v Commissioner for Railways (NSW)	View on:JADE[1964] HCA 69	1 citation Jump To Cite 1 - [1964] HCA 69
Jaspers v Greenwood	View on:JADE[2012] NZHC 2422	1 citation Jump To Cite 1 - [2012] NZHC 2422
LM Investment Management Ltd (receiver apptd) (in liq) v Drake	[2020] QSC 265	2 citations Jump To Cite 1 - [2020] QSC 265 Cite 2 - [2020] QSC 265
LM Investment Management Ltd v Drake	[2019] QSC 281	2 citations Jump To Cite 1 - [2019] QSC 281 Cite 2 - [2019] QSC 281
Macedonian Orthodox Community Church St Petka Inc v Petar	View on:JADE(2008) 237 CLR 66	3 citations Jump To Cite 1 - (2008) 237 CLR 66 Cite 2 - (2008) 237 CLR 66 Cite 3 - (2008) 237 CLR 66
Nolan v Collie	View on:VR(2003) 7 VR 287	3 citations Jump To Cite 1 - (2003) 7 VR 287 Cite 2 - (2003) 7 VR 287 Cite 3 - (2003) 7 VR 287
Nolan v Collie	View on:JADE[2003] VSCA 39	1 citation Jump To Cite 1 - [2003] VSCA 39
Olsen v James	View on:JADE[2020] NSWSC 1015	3 citations Jump To Cite 1 - [2020] NSWSC 1015 Cite 2 - [2020] NSWSC 1015 Cite 3 - [2020] NSWSC 1015
Owners of Shin Kobe Maru v Empire Shipping Co Inc	View on:JADE(1994) 181 CLR 404	2 citations Jump To Cite 1 - (1994) 181 CLR 404 Cite 2 - (1994) 181 CLR 404
Park v Whyte	[2015] QSC 283	3 citations Jump To Cite 1 - [2015] QSC 283 Cite 2 - [2015] QSC 283 Cite 3 - [2015] QSC 283
Park v Whyte (No 3)	[2018] 2 Qd R 475; [2017] QSC 230	4 citations Jump To Cite 1 - [2017] QSC 230 Cite 2 - [2018] 2 Qd R 475 Cite 3 - [2018] 2 Qd R 475 Cite 4 - [2018] 2 Qd R 475
Re Beddoe	View on:ICLRUK(1893) 1 Ch 547	3 citations Jump To Cite 1 - (1893) 1 Ch 547 Cite 2 - (1893) 1 Ch 547 Cite 3 - (1893) 1 Ch 547
Re Obie Pty Ltd	[1984] 1 Qd R 371	1 citation Jump To Cite 1 - [1984] 1 Qd R 371
Re Whitehouse	[1982] Qd R 196; View on:SCLQ[1981] QSC 245	3 citations Jump To Cite 1 - [1981] QSC 245 Cite 2 - [1982] Qd R 196 Cite 3 - [1982] Qd R 196
Shin Kobe Maru v Empire Shipping Co Inc	View on:JADE[1994] HCA 54	1 citation Jump To Cite 1 - [1994] HCA 54
Vacuum Oil Co Pty Ltd v Wiltshire	View on:JADE[1945] HCA 37	1 citation Jump To Cite 1 - [1945] HCA 37
Vacuum Oil Co. Pty. Ltd. v Wiltshire	View on:JADE(1945) 72 CLR 319	2 citations Jump To Cite 1 - (1945) 72 CLR 319 Cite 2 - (1945) 72 CLR 319

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
LM Investment Management Ltd (in liq) v Whyte [No 2]	[2023] QSC 147	2 citations

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LM Investment Management Ltd (in liq) v Whyte[2023] QSC 132