Victorian Supreme Court Justice Jennifer Davies has ruled that Military Super has to pay Melbourne-based hedge fund manager Agora Asset Management an $8 million exit fee for withdrawing $150 million in assets from the Agora Absolute Return Fund II.
Justice Davies found Agora was allowed to charge an exit fee of up to 5 per cent of the assets, while it also had the right to refuse Military Super's cancellation of its redemption request.
"The fact that Agora stands to benefit from the imposition of the exit fee and the withholding of its consent to the redemption cancellation does not mean that Agora has acted capriciously and in breach of trust," Davies said in her decision earlier this month.
Military Super initially claimed it had not received sufficient information about the exit fee, but Agora managing director Peter Apostolopoulos said it had provided the super fund with the necessary information in November last year when it amended its information memorandum.
"Apostolopoulos gave evidence to the effect that the exit fee of 5 per cent was intended to compensate Agora for the loss of business," Davies said.
"I would not draw the conclusion merely from the fact that it did impose a fee at the maximum amount that it was not acting in good faith, particularly as Agora was entitled to charge 5 per cent under the terms of the trust deed.
"I have concluded that Agora did not act other than in accordance with its fiduciary and contractual duties to Military Super. Accordingly the plaintiffs' case against Agora fails."
