In a recent decision, the Supreme Court of Victoria has granted orders to facilitate the winding up and deregistration of Spitfire Investments (ARSN 635 234 472) (“Spitfire Investments”), a registered managed investment scheme for which Equity Trustees Limited (“EQT”) acted as the responsible entity.

Background

• Spitfire Investments was established in July 2019, with EQT acting as the responsible entity and Spitfire Operations Pty Ltd (ACN 163 452 300) (“Spitfire Operations”) appointed as the investment manager.
• Spitfire Operations entered voluntary administration in August 2020 and was later placed in liquidation. By November 2020, all scheme assets in Spitfire Investments had been distributed to members.
• EQT decided to wind up Spitfire Investments in December 2020, but due to Spitfire Operations’ external administration and subsequent deregistration on 27 July 2024, Spitfire Operations did not prepare final accounts for Spitfire Investments.
• Because no final accounts were prepared, EQT was unable to arrange for an independent audit of the final accounts of Spitfire Investments which was a requirement for the scheme to wound up in compliance with the audit requirements contained in the constitution for Spitfire Operations, the Corporations Act, ASIC Regulatory Guide 148 and ASIC Class Order 13/762.
• On 30 November 2020, EQT notified ASIC that it was in breach of its statutory obligations and was unable to comply with its audit requirements.
• On 7 December 2020, EQT notified ASIC of the commencement of winding up Spitifire Investments. However, as there was an ongoing breach that had not been rectified, ASIC informed EQT that it could not process the winding-up of Spitfire Investments.
• ASIC informed EQT that to facilitate the deregistration of Spitfire Investments, EQT may wish to apply to the court for orders allowing the winding up of Spitfire Investments under section 601NF of the Corporations Act 2001 (Cth) (“Corporations Act”).

Section 601NF of the Corporations Act

Section 601NF(2) of the Corporations Act provides that the Court may, by order, give directions about how a registered scheme is to be wound up if the Court thinks it necessary to do so (including for the reason that the provisions in the scheme’s constitution are inadequate or impracticable).

An order may be made to the Court on the application of either the responsible entity, a director of the responsible entity, a member of the scheme, or ASIC.

Court Findings

Given the circumstances, EQT applied to the Court under section 601NF(2) of the Corporations Act, seeking relief from the obligation to conduct an independent audit of the final accounts. The Court found:

• There was no identifiable benefit in conducting an independent audit, as all assets had already been distributed to members under the supervision of independent liquidators and Spitfire Investments had not operated since that distribution.
• Compliance with the audit requirements was impracticable, given that no final accounts were prepared and Spitfire Operations was deregistered.
• ASIC did not oppose the application to deregister Spitfire Investments and had advised EQT to seek Court directions in facilitating the winding up of the scheme.

For the reasons provided above, the Court made orders that Spitfire Investments be wound up without EQT having to arrange for an independent audit of the final accounts of the scheme in accordance with the requirements under the scheme constitution or the audit under the Corporations Act, ASIC Regulatory Guide 148 and ASIC Class Order 13/762.

Key Takeaways

This case highlights that the Courts can exercise their powers under the Corporations Act to provide practical relief where strict compliance with a managed investment scheme’s constitution or statutory obligations are infeasible or unreasonable.

Investors’ interests in this case were protected, as all assets had already been fully distributed and the imposition of the audit requirement would have delayed the wind-up process and incurred additional costs with no benefits to investors.

This case shows that flexibility is crucial where procedural obligations arise during the winding up of a managed investment scheme.

If you would like further information on your obligations as a responsible entity or trustee of a managed investment scheme, please get in contact with Brendan Ivers at brendan.ivers@kainlawyers.com.au.

For over 20 years, Kain Lawyers has been a trusted leader in Australia’s mid-market transactions sector.

We partner with founders, corporates, and investors, including private equity, venture capital, private credit, and real asset fund managers, delivering tailored solutions to navigate complex transaction challenges. Our success is a testament to the strength of our specialised approach and the lasting relationships we build with our clients.

We’re proud to highlight below some of the clients we’ve had the privilege of working with recently.

Kain Lawyers is proud to have advised SRO Motorsports Australia Pty Ltd on the establishment of Australia’s new premier national circuit racing series in partnership with Motorsport Australia. The partnership brings together international motorsport event promoter and operator SRO Motorsports Group with Motorsport Australia, Australia’s motorsport governing body.

This series is set to become the new premier national circuit racing series and a major feature on the Australian motorsport calendar, including commercial partnerships and potential broadcast arrangements to be announced in the coming months. The event will continue the Shannons SpeedSeries which has served as the home of national circuit racing in Australia for almost two decades. The new series will run events in the GT3 and GT4 categories Australia wide including hosting rounds at Phillip Island, Sydney Motorsport Park and The Bend.

The Kain Lawyers deal team advising SRO Motorsports was led by Michael Chrisohoou and Brendan Wykes with assistance from Rocco Ierace.

Ben McMellan, SRO Motorsports Australia CEO, commented: “We are extremely pleased to bring SRO’s globally recognised international capabilities for national circuit racing to the Australian marketplace.”

#TransactionSpecialists #KainLawyersSydney #KainLawyersMelbourne #KainLawyersAdelaide

Congratulations to Travis Cordingley and Stefan Harris on being listed in the peer-reviewed Doyle’s Guide 2025 South Australian Corporate & Commercial Rising Stars! This well-deserved recognition highlights their expertise, hard work, and significant contributions to the Kain Lawyers team.

#TransactionSpecialists #KainLawyersSydney #KainLawyersMelbourne #KainLawyersAdelaide

Kain Lawyers is pleased to have advised Digital Matter on an investment by Five V Capital, a leading, growth-focused private equity and venture capital firm in Australia and New Zealand.

Digital Matter is a market leader in battery powered IoT asset tracking hardware and software solutions. Having served the industry for over 23 years, the company specialises in developing and manufacturing IoT GPS tracking devices, sensor monitoring and advanced telematic solutions. Headquartered in Perth, Australia, Digital Matter operates in over 130 countries, with offices in South Africa, North America, and Europe.

Renowned for their cutting-edge solutions and commitment to quality, the investment by Five V Capital will strengthen Digital Matter’s ability to deliver best-in-class solutions to their growing global customer base.

The Kain Lawyers team advising Digital Matter was led by Cath Debreceny with assistance from Travis Cordingley, Laura Murphy, and Sasha Murray.

Cath Debreceny congratulated both parties on the significant partnership which will continue to help drive Digital Matter’s innovation and expansion.

“This is one of several exciting deals Kain Lawyers has advised on in the IT/TMT sector and we’re proud to support this vital industry’s ongoing growth and development,” Cath said.

#TransactionSpecialists

Kain Lawyers is pleased to have advised Para Bellum Solutions Pty Ltd on its strategic partnership with Logi-Tech Pty Ltd.

The transaction will leverage the complementary strengths of both businesses to deliver cutting-edge consulting and technology solutions, with a strong emphasis on cybersecurity.

Building on 18 months of collaboration, Jake Kearsley, the Managing Director of Para Bellum Solutions, commented that the partnership is well-positioned to drive innovation in consulting, cyber security and technology, both locally and globally.

The Kain Lawyers team advising Para Bellum Solutions was led by Gerry Cawson with assistance from team members Jack Dittmar and Anna Wroe.

Mr Cawson congratulated both parties on the significant partnership, which is aimed at driving meaningful outcomes for their clients.

“This is another in a series of deals Kain Lawyers have advised on in the defence and defence contracting sector, and we’re proud to continue supporting this vital industry and its growth,” Mr Cawson said.

Para Bellum Solutions, established in 2017, is a consulting firm focused on supporting the Australian Government, specialising in strategy, project management, business development, and workforce solutions for the defence and space sectors. With deep industry knowledge, it is a trusted partner in navigating complex challenges and driving impactful outcomes.

Logi-Tech offers nearly 40 years of expertise in bridging business and technology. It provides cybersecurity and IT solutions, including secure cloud services and unified technology for sectors like defence, manufacturing, and education. As an endorsed South Australian Government supplier, Logi-Tech’s certified engineers and global partnerships deliver cutting-edge IT services.

Kain Lawyers is pleased to have advised Athletic Ventures, an investor community of professional Australian sports stars, in the launch of its first venture capital fund.

Led by former AFL star Matt de Boer and basketballer Matthew Dellavedova, Athletic Ventures is targeting a minimum raise of $25 million for the Athletic Ventures Champions Fund, a stapled early stage venture capital limited partnership and unit trust.

Athletic Ventures Champions Fund aims to support early-stage private technology and consumer businesses, co-investing with tier 1 VCs. The first close is anticipated before Christmas.

The Kain Lawyers deal team advising Athletic Ventures was led by Dave Mitchell with assistance from Navar Amici and Rocco Ierace.

Read the full story in The Australian Financial Review.

Kain Lawyers are pleased to announce their legal advisory role in the launch of the Whitmore Property Large Format Retail Fund, a new investment opportunity designed to capitalise on the growing demand for commercial retail spaces. The Fund will invest in high-quality large-format retail properties across Australia.

Kain Lawyers Director, Brendan Ivers, said Whitmore Property Group is an investor-focused property company with an impeccable record in the industry.

“Kain Lawyers worked with Whitmore Property on all aspects of the Fund structuring and establishment of the Fund, including preparing the Fund’s establishment documents, Information Memorandum and management agreements. We also worked closely with Whitmore Property Group to structure the Fund’s liquidity mechanism, so that it was tailored to meet Whitmore’s requirements of providing investors in the Fund with certainty around liquidity.”

“We are proud to have assisted Whitmore Property Group in establishing this new Fund and look forward to providing further advice on the Fund as it grows and makes future acquisitions,” Mr Ivers said.

Whitmore Property is a specialist commercial property investor with a proven track record of delivering above-average returns.

Investors can expect an initial distribution of 6.25% and an average seven-year distribution of 7.5%. The Fund targets an internal rate of return (IRR) of approximately 12.8%, with tax-deferred distribution components providing additional benefits.

Kain Lawyers have further bolstered their national M&A capability with the appointment of Director Cath Debreceny and Special Counsel Laura Murphy who will be based in the firm’s new Melbourne office at 55 Collins Street. Cath is a former M&A partner at KPMG Law with significant national and international experience in mergers, acquisitions, and disposals.

Cath’s practice focuses on founder exits, inbound multinational acquisitions, and acquisitions and disposals for Australian corporates. With over 25 years of national and international experience, Cath has advised on deals across the pharmaceutical, health, childcare, civil construction, industrials, and technology sectors. Cath recently advised CSA Specialised Services on its sale to Livingbridge’s Waste Services Group and the founders of Liberate Learning on the sale of a majority interest to MPS Interactive, a global B2B learning company listed on the Indian Stock Exchange.

Prior to KPMG, Cath spent eight years as a partner at Maddocks, after stints at top-tier firms King & Wood Mallesons in Melbourne, and Kirkland and Ellis LLP in New York. Her expertise in mergers and acquisitions has earned her recognition as a leading commercial lawyer by ‘Best Lawyers’ from 2018 to 2022, and by Doyle’s Guide.

Laura is an experienced M&A practitioner specialising in mid-market transactions, having previously advised a range of founders and owners, multinational groups, privately held Australian companies and listed public companies on mergers, acquisitions, and divestments. Laura has recently acted for the Founder of FraudWatch, a leading online protection provider to NetCraft a British-based cybercrime detection company.

Kain Lawyers Managing Director, John Kain, said the firm is thrilled to welcome Cath and Laura to the team, noting their extensive skill sets will strengthen the firm’s transactional offering in the mid-market sector.

“Kain has benefited once again from the high calibre of lawyers leaving the Big Four after they retreat from legal services.  We are thrilled to add Cath to the Melbourne team, where, alongside Nick Brown we have quickly put together an outstanding team focused directly on our core expertise of mid-market transactions. We are really excited to be able to offer this quality team to our Melbourne clients. Their expertise will help to further cement our position as Australia’s go-to mid-market transaction specialists,” Mr Kain said.

Cath and Laura will join Kain Lawyers Melbourne-based Directors Nick Brown and Jeremy Collins who started with the firm earlier this year.

Kain Lawyers recently celebrated 20 years in business. Kain Lawyers was established 20 years ago to create opportunities for our clients, our team, and our community. As we reflect on the last 20 years we thank our team, our clients and our community partners for the trust which they have placed in us. Thank you to all who have been involved in our journey so far. As Australia’s mid-market transaction specialists, Kain Lawyers looks forward to creating opportunities for our clients, our team, and our community for the next 20 years. #transactionspecialists