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[2021] FCA 1185
Federal Court of Australia
2021-09-30
Colvin J
Original judgment source is linked above.
The application under the Trustees Act (WA) 16 I am satisfied that power is conferred under s 89(1) of the Trustees Act (WA) to make the orders sought. The amounts involved and the entitlement of the company to a right of exoneration that far exceeds the proceeds from the sale of the property make it expedient for the power to sell the property to be conferred. It has been sold at auction so no issue arises as to whether market value has been obtained. There is no reason to establish a receivership so as to deal with competing claims. There is no reason why the order should not be made nunc pro tunc. There is no suggestion that Mr Anderson acted in a manner that might be criticised when it came to the steps taken to realise the property or that there was any dishonesty or unreasonableness in the dealings. No steps have been taken by any other party to secure the appointment of a trustee to the Trust. 17 The present case is substantively the same as that described by Moshinsky J in Cremin because no issue arises as to the application of the trust assets to general creditors after allowing for the costs of the liquidation that involved discharging the duties imposed by the Trust.
The application under s 1318(2) of the Corporations Act 18 Section 1318(2) applies where a liquidator (amongst others) has reason to apprehend that a claim will or may be made against that person 'in respect of any negligence, default, breach of trust or breach of duty' in the capacity as liquidator. In such a case, if the person has acted honestly and in all the circumstances ought fairly to be excused, the Court may relieve against the whole or part of that liability on such terms as the Court thinks fit. 19 The submission made in support of the application for an order under that provision is that there is the potential for some person to raise a claim as to the manner in which the auction was conducted or by reason of the breach of the bare trust which, at the time of sale, did not authorise the liquidator to cause the company to sell the property. 20 An order of the kind sought was granted in Pleash on the basis that there was a real rather than a fanciful or remote possibility that a claim might be made, concerning a breach of trust and that the liquidators had acted unwittingly and honestly. In Theobald, in the matter of Finplas Pty Ltd [2014] FCA 31, Siopis J refused to make such an order in similar circumstances to the present case: at [35]-[40]. I am inclined to the same view. In addition to the reasoning by his Honour which applies also in the present case, as I am satisfied that an order should be made under the Trustees Act (WA) and that the order can and should be made to speak nunc pro tunc the consequence is that the authority to sell conferred by the order will apply to the time when the property was sold. In those circumstances, it is difficult to see how there could be any claim. Of course, the refusal of the application at this time would not prevent the making of a future application if the circumstances were to change.
Orders 21 For the reasons I have given, there will be orders substantially in terms of the primary relief sought on the application. It follows that the alternative orders for the appointment of Mr Anderson as a receiver are not required. I am satisfied that the liquidator has acted reasonably in bringing the present application and will make the orders sought as to costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.
Anderson (Liquidator)
Aravanis
Legal principles 11 It is now settled that the liquidator of an insolvent (former) trustee cannot sell the trust's property without order of the Court or by appointment of a receiver over the trust assets: Cremin, in the matter of Brimson Pty Ltd (in liq) [2019] FCA 1023 at [49] (Moshinsky J); applying the reasoning of Allsop CJ at [44] (Farrell J agreeing at [196]) in Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310. As was observed by Moshinsky J: The rationale for this position is that, on a proper understanding, the trust assets are not the 'property of the company', but are instead trust property in which the corporate trustee has a proprietary interest by way of lien or charge to secure its right of exoneration: see Jones & Matrix at [89]. Thus, to the extent that the subject of a sale is the whole of a trust asset, rather than merely the company's lien or charge in respect of that asset, it is not authorised by the power of sale in s 477(2)(c) [of the Corporations Act]. 12 The statements in the earlier authorities of Caterpillar Financial Australia Limited v Ovens Nominees Pty Ltd [2011] FCA 677 and Pleash, in the matter of Suncoast Restoration Pty Ltd (in liq) [2013] FCA 355; (2013) 211 FCR 203 relied upon by Mr Anderson should be understood in that context and should be modified accordingly. 13 The practical consequences were summarised by Moshinsky J in Cremin at [50]-[51] as follows: The courts are generally willing, upon an appropriate application, to make orders permitting the liquidator of a (former) corporate trustee to sell trust assets. In situations where the property of the trust will be exhausted following its sale and subsequent distribution to creditors, it may be appropriate merely to give the liquidator a power of sale … The more common course is, however, for the liquidator of the insolvent (former) corporate trustee to apply to be appointed a receiver for the purpose of selling the trust assets and distributing the proceeds among trust creditors … Orders appointing a liquidator as a receiver for this purpose may be made nunc pro tunc to authorise sales of trust assets that have already occurred … The proceeds from an exercise of a corporate trustee's right of exoneration may only be applied in satisfaction of the trust liabilities to which that right relates … Thus, the liquidator of a (former) corporate trustee may only apply the proceeds of a sale of trust assets to satisfy debts owed to trust creditors (as opposed to general creditors). This includes the costs of the liquidation (including the liquidator's remuneration) because such costs constitute debts incurred by the company in discharging the duties imposed by the trust … In circumstances where a company has only ever acted as a trustee of one trust and that has been the totality of its affairs, no issue arises as to the application of trust assets to general creditors because all of the company's creditors are trust creditors. In this situation, the proceeds from the exercise of the right of exoneration are to be distributed to the trust creditors in accordance with the order of priority prescribed by the Corporations Act … (citations omitted) 14 The above statement has since been followed in a number of decisions of this Court, including Hughes, in the matter of Substar Holdings Pty Ltd (in liq) [2020] FCA 1863 at [27] (McKerracher J), Deppeler, in the matter of Old Port Road Pty Ltd (in liq) [2021] FCA 980 at [16] (O'Bryan J) and Rathner (liquidator), in the matter of Garrows Close Pty Ltd (in liq) [2021] FCA 505 at [11] (Beach J) . 15 Rathner, like the present case, was an instance where the application was brought under the relevant legislation concerned with trustees. Orders of the kind sought in the present case were made. The circumstances were slightly different to the present case. There the Court considered an application for orders under s 63(1) of the Trustee Act 1958 (Vic) by liquidators of a company that already held its assets as bare trustee. Section 63(1) provides that the Court may confer a power of sale where the sale of property vested in a trustee 'is in the opinion of the Court expedient' but there is no power of sale. In the present case, the company acquired its status as bare trustee upon its removal as trustee under the terms of the Deed. The application is under s 89 of the Trustees Act (WA) which is in slightly different terms. It requires, relevantly for present purposes, the Court to be of the opinion that a sale 'is expedient in the management or administration of any property vested in a trustee' in order for the Court to be able to confer upon the trustee the necessary power.
(2018) 260 FCR 310
(2013) 211 FCR 203