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Litigation Services

Funds Management Disputes

Working hand-in-hand with our Funds Management team, we are uniquely placed to provide strategic advice to help resolve the broad range of disputes, compliance, and regulatory issues which often arise in the funds management industry. Our expertise extends to disputes throughout the entire life cycle of a fund, including contested investor meetings, advice on powers and duties of responsible entities and trustees, guidance on disclosure and misleading and deceptive conduct. We aim to forecast and guide our clients through contentious issues before they escalate, but if court intervention becomes inevitable, we have significant expertise in managing proceedings across all levels of State and Federal courts.

Examples of our work

ABC Learning Centres

Representing a property fund which was a major landlord of ABC Learning Centres, and successfully intervening in the Federal Court insolvency proceedings.

Misleading and deceptive conduct claim

Successfully defending claims of misleading and deceptive conduct in an explanatory memorandum sent to investors during a hostile managed investment scheme takeover.

AFS licence dispute

Obtaining orders from the Administrative Appeals Tribunal overturning ASIC's decision to cancel a large fund manager's AFS licence.

Agribusiness managed investment scheme winding up

Obtaining novel orders to wind up a number of inter-related agribusiness managed investment schemes on behalf of a fund manager.

Centro Properties Group (now Federation Centres) restructure

Acting for the Centro MCS syndicate management business in the restructure of Centro Properties Group and Centro Retail Trust to create the multi-billion-dollar ASX-listed Centro Retail Australia.

Real estate contract disputes

Acting for a responsible entity of a property fund in multiple Federal and Supreme Court proceedings about the acquisition and refurbishment of two commercial office, retail and hotel premises. The disputes involved interpreting the contracts for sale, calculation of the purchase price, valuation, incentives and one-year price adjustment, development deed, construction contracts, pre-lease agreements and leases.

Fund manager

Acting for a fund manager to defend a claim that a heads of agreement constitutes a binding contract to sell land, including opposing a caveat registered over the land.

Freedom of Information dispute

Acting for an AFS licence holder responding to a Freedom of Information request lodged by a major newspaper seeking to reveal details of communications with ASIC.

Trustee disputes

Acting in proceedings about whether a right of first refusal had been successfully invoked against a trustee and in a dispute against an investment manager who sought to orchestrate a removal of the trustee by members to avoid its contractual obligations.

Authorised representative disputes

Acting in proceedings instituted by the authorised representative's former licensee seeking to recover damages pursuant to an indemnity; acting on behalf of an authorised representative to successfully resolve a claim and third party proceedings about providing allegedly negligent investment advice; successfully defending an individual and a corporate authorised representative in District Court proceedings for negligence and misleading or deceptive conduct in respect of financial advice provided to investors; and acting for a corporate authorised representative who received a show cause notice from its licensee alleging breaches of statutory and contractual obligations.

Australian Financial Complaints Authority claims

Acting for a licensee challenging the jurisdiction of AFCA to investigate multiple complaints stemming from the conduct of related parties of an authorised representative.

Investor dispute

Acting for investors in a unit trust investigating a class action alleging misleading and deceptive conduct, conflicts of interest, and mismanagement by a responsible entity.

Judicial advice application

Successfully resolving a judicial advice application for a responsible entity.

Licensee and authorised representative dispute

Acting for a corporate authorised representative who received a show cause notice from its licensee alleging breaches of statutory and contractual obligations.

ASIC investigations and notices

Acting for corporate entities and individuals, including AFS licence holders, authorised representatives and employees, in relation to ASIC investigations and notices seeking provision of information or attendance at examinations with ASIC.

ASIC banning orders

Acting on behalf of recipients of ASIC notices in relation to the proposed imposition of orders banning the provision of financial services or acting as a director of a company.

Trustee’s duties

Acting on behalf of trustees of listed and unlisted managed investment schemes to advise on the scope of their duties.

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Contact McMahon Clarke

T +61 7 3239 2900
A Level 7, 100 Creek Street, Brisbane Qld 4000