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Exhibit 8.2
[LETTERHEAD OF MALLESONS STEPHEN JAQUES]
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HomeSide Global MBS Manager, Inc. HomeSide Mortgage Securities, Inc. 4 January 2001
7301 Baymeadows Way 7301 Baymeadows Way
Jacksonville, Florida 32256 Jacksonville, Florida 32256 Stuart Fuller
United States of America United States of America Partner
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Dear Sirs
HOMESIDE MORTGAGE SECURITIES TRUST 2001-1
We have acted for HomeSide Global MBS Manager, Inc. ("GLOBAL TRUST Manager"),
the National Australia Bank Limited ("NATIONAL") and HomeSide Mortgage
Securities, Inc. ("DEPOSITOR") in connection with the HomeSide Mortgage
Securities Trust 2000-1 ("TRUST") constituted under the Master Trust Deed
("MASTER TRUST DEED") between Perpetual Trustee Company Limited ("ISSUER
TRUSTEE") and the Global Trust Manager and the proposed issue of notes ("NOTES")
by the Trust.
Definitions in the Prospectus (defined below) apply in this opinion but
"Relevant Jurisdiction" means the Commonwealth of Australia, New South Wales,
Victoria and the Australian Capital Territory. No assumption or qualification in
this opinion limits any other assumption or qualification in it. A reference to
Documents is a reference to the documents listed in paragraphs 1(a) to (e)
inclusive.
1 DOCUMENTS
We have examined the following documents:
(a) the Master Trust Deed;
(b) the Notice of Creation of Trust for the Trust;
(c) a draft of the Supplemental Deed for the Trust;
(d) a draft of the Note Trust Deed for the Trust between the Issuer
Trustee, the Global Trust Manager and the Bank of New York, New York
Branch (as the Note Trustee);
(e) a draft of the Agency Agreement for the Trust between, among others,
the Global Trust Manager and the Issuer Trustee;
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(f) a copy of the Prospectus as filed with the Securities and Exchange
Commission ("COMMISSION") under the US Securities Act of 1933
("PROSPECTUS");
(g) the powers of attorney given by the Issuer Trustee empowering the
execution by the Issuer Trustee of the Documents to which it is a party
("POWERS OF ATTORNEY");
(h) an extract of the minutes of meeting of the board of directors of the
Issuer Trustee which evidences the resolutions authorising the signing,
delivery and observance of obligations of the Issuer Trustee under the
Documents;
(i) certified copies of the constitution of the Issuer Trustee; and
(j) such other documents as we consider necessary to render this opinion.
2 ASSUMPTIONS
For the purposes of giving this opinion, we have assumed that:
(a) where a document has been submitted to us in draft form it will be
executed in the form of that draft;
(b) that the Transaction Documents will be executed by duly authorised
signatories and will be duly authorised by the parties to them (other than
the Issuer Trustee) and do or will constitute valid and binding
obligations of all the parties to them, other than the Issuer Trustee,
under all relevant laws including the laws of the Relevant Jurisdictions;
(c) that, if an obligation is to be performed in a jurisdiction outside
Australia, its performance will not be contrary to an official directive,
impossible or illegal under the law of that jurisdiction;
(d) the authenticity of all signatures, seals, duty stamps and markings;
(e) the completeness of all documents submitted to us and the conformity
to originals of all documents submitted to us as photocopies or fax
copies;
(f) that the constitution of the Issuer Trustee is the constitution of the
Issuer Trustee as at the date of this letter and that no amendments have
been made to it since that date;
(g) that all authorisations specified in paragraph 1(h) above remain in
full force and effect;
(h) the delivery of the Documents (to the extent such Documents are
executed as of the date of this letter) on behalf of the Issuer Trustee;
(i) that:
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(i) the resolution of the board of directors was properly passed
(including that any meeting convened was properly convened);
(ii) all directors who participated and voted were entitled so to
do;
(iii) the directors have properly performed their duties and all
provisions relating to the declaration of directors' interests or the
power of interested directors to vote were duly observed,
but there is nothing on the face of the extract of the minutes
referred to in paragraph 1(h) that would lead us to believe
otherwise, and, in any event, we note that you may rely on the
assumptions specified in section 129 of the Corporations Law unless
you knew or suspected that the assumptions were incorrect;
(j) that the Issuer Trustee was the sole trustee of the Trust at the time
it executed the Documents;
(k) that the Commissioner of Taxation has not given and will not give a
direction under section 218 or section 255 of the Income Tax Assessment
Act 1936 of Australia ("ITAA") or section 74 of the Sales Tax Assessment
Act 1992 or section 260-5 of the Income Tax Assessment Act 1997 of
Australia, requiring the Issuer Trustee to deduct from sums payable by it
to a person under the Documents an amount of Australian tax payable by the
payee;
(l) that no transaction in connection with the Documents constitutes an
unfair preference, an uncommercial transaction, an insolvent transaction
or an unfair loan within the meaning of sections 588FA, 588FB, 588FC or
588FD respectively of the Corporations Law;
(m) that no party has contravened or will contravene section 208 or
section 209 of the Corporations Law by entering into any Document or a
transaction in connection with any Document;
(n) each person who has signed the Documents as an attorney of the Issuer
Trustee is in fact a person named or referred to in the Powers of Attorney
for the relevant company;
(o) that the Powers of Attorney have been or will be registered in the
Australian Capital Territory or New South Wales as appropriate;
(p) that the Issuer Trustee entered into the Documents (other than the
Trust Deed and the Supplemental Deed) in its capacity as trustee of, and
for the purposes of, the Trust and for the benefit of the beneficiaries of
the Trust;
(q) that the officers and agents of the Issuer Trustee have properly
performed their duties to the Issuer Trustee respectively and we note
that, under section 129(4) of the Corporations Law, you may make this
assumption unless you know or ought to know that the assumption is
incorrect;
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(r) that the Issuer Trustee has not exercised its powers under the
Documents to release, abandon or restrict any power conferred on it by the
Master Trust Deed;
(s) no action has been taken to terminate the Trust;
(t) that the Issuer Trustee (in its capacity as trustee of the Trust) is
able to pay all its debts, as and when they become due and payable, at the
time Documents are entered into, or any act is done, or any omission is
made, for the purpose of giving effect to a transaction under any Document
(and that the Issuer Trustee does not become unable to pay any of its
debts as and when they become due and payable, as a result of any such act
or event); and
(u) that, except to the extent that the relevant representation and
warranty is the subject of an opinion in paragraph 4, the representations
and warranties made by the Issuer Trustee in each Document are correct in
all respects at all times.
3 QUALIFICATIONS
Our opinion is subject to the following qualifications:
(a) we express no opinion as to any laws other than the laws of each
Relevant Jurisdiction as in force at the date of this opinion and, in
particular, we express no opinion as to the laws of England or Federal or
State laws of the United States;
(b) our opinion is subject to the explanations and qualifications set
forth under the caption "Material Australian Tax Consequences" in the
Prospectus. No tax rulings will be sought from the Australian Taxation
Office with respect to the Trust for any of the matters referred to in
this opinion
(c) the nature and enforcement of obligations may be affected by lapse of
time, failure to take action or laws (including, without limitation, laws
relating to bankruptcy, insolvency, liquidation, receivership,
administration, reorganisation and reconstruction) and defences generally
affecting creditors' rights;
(d) a creditor's rights may be affected by a specific court order obtained
under laws (including, without limitation, section 444F and part 5.3A
division 13 of the Corporations Law) and defences generally affecting
creditors' rights;
(e) the availability of certain equitable remedies (including, without
limitation, injunction and specific performance) is at the discretion of a
court in the Relevant Jurisdictions;
(f) an obligation to pay an amount may be unenforceable if the amount is
held to constitute a penalty;
(g) a provision that a statement, opinion, determination or other matter
is final and conclusive does not necessarily prevent judicial enquiry into
the merits of a claim by an aggrieved party;
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(h) the laws of the Relevant Jurisdictions may require that discretions
are exercised and parties act reasonably and opinions are based on
reasonable grounds;
(i) the question whether a provision of a Document which is invalid or
unenforceable may be severed from other provisions is determined at the
discretion of a court in the Relevant Jurisdictions;
(j) an indemnity for legal costs may be unenforceable;
(k) we express no opinion as to:
(i) provisions precluding oral amendments or waivers; -
(ii) whether a court would determine that any particular exercise by
the Issuer Trustee of its powers under the Master Trust Deed and the
Supplemental Deed relating to the Trust is for the benefit of
beneficiaries of the Trust;
(iii) whether a judgment for a monetary amount would be given in a
currency other than Australian dollars, although recent decisions of
English Courts allowing judgments in a foreign currency have been followed
in the Courts of New South Wales;
(iv) except as otherwise expressly stated in this opinion, the date
on which a conversion from foreign currency would be made for the purpose
of enforcing a judgment.
(l) court proceedings may be stayed if the subject of the proceedings is
current before a court;
(m) a document may not be admissible in court proceedings unless
applicable stamp duty has been paid;
(n) in order to enforce a foreign judgment in the Relevant Jurisdictions
it may be necessary to establish that the judgment is for a fixed or
certain sum of money and is not in the nature of a penalty or revenue debt
and, if raised by the judgment debtor, it may be necessary to establish
that:
(i) the judgment debtor (or its duly appointed agent) received
actual notice of the proceedings in sufficient time to contest the
proceedings;
(ii) the judgment was not obtained by fraud or duress or in a manner
contrary to natural justice or public policy in the Relevant
Jurisdictions; and
(iii) the subject matter of the proceedings giving rise to the
judgment was not immovable property situated outside the Relevant
Jurisdictions; and
(o) the specific approval of the Reserve Bank of Australia must be
obtained in connection with certain payments and transactions having a
prescribed connection with countries or entities designated from time to
time by the Reserve Bank of Australia for the purposes of
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the Banking (Foreign Exchange) Regulations (currently Iraq, Libya, the
Federal republic of Yugoslavia (Serbia and Montenegro), the Afghan faction
known as Taliban and the National Union for the Total Independence of
Angola).
4 OPINIONS
Based on the assumptions and subject to the qualifications set out above,
we are of the opinion that:
(a) while the sections entitled "Summary - Material Australian Tax
Consequences" in Part A of the Prospectus and "Material Australian Tax
Consequences" in Part B of the Prospectus do not purport to discuss all
possible Australian tax ramifications of the purchase, ownership, and
disposition of the Notes, we hereby adopt and confirm the opinions set
forth in the under the headings "Summary - Material Australian Tax
Consequences" in Part A of the Prospectus and "Material Australian Tax
Consequences" in Part B of the Prospectus. There can be no assurance,
however, that the tax conclusions presented in those sections of the
Prospectus will not be successfully challenged by the Australian Taxation
Office, or significantly altered by new legislation, changes in Australian
Taxation Office positions or judicial decisions, any of which challenges
or alterations may be applied retroactively with respect to completed
transactions
(b) the obligations of the Issuer Trustee under each Document will be
valid, binding and (subject to the terms of the Document) enforceable upon
due execution and delivery of each Document or in the case of the Notes,
when duly executed and duly authenticated, in accordance with their terms.
The expression "enforceable" means that the relevant obligations are of a
type that the courts in the Relevant Jurisdictions enforce and does not
mean that the obligations will necessarily be enforced in all
circumstances in accordance with their terms. In particular, but without
limitation, see paragraphs 3(c), (d) and (e).
5 CONSENT
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement on Form S-11 filed with the Prospectus and to the
references to this firm under the heading "Summary - Material Australian
Tax Consequences" in Part A of the Prospectus under the heading "Material
Australian Tax Consequences in Part B of the Prospectus; under the heading
"Legal Matters" in Part A and Part B of the Prospectus, and any other
reference to this firm contained therein, without admitting that we are
"experts" within the meaning of the Securities Act of 1933 or the rules
and regulations of the Commission issued under the Securities Act of 1933
with respect to any part of the Registration Statement, including this
exhibit.
Yours faithfully
/s/ Mallesons Stephen Jaques
