Business Innovation Pty Ltd v Maddison Morgan & Bailey Pty Ltd

The Concessional Trust

1. There is in evidence a document dated 31 August 2005 under which ENA agreed to be the trustee of the "ENA Development Trust Concessional". It purports to have been stamped on 25 July 2018. The document was provided to Mr Krejci on 20 April 2022 by a person from "ENA Accounts" named "Tam Pamm".
2. This appears to be the document relied on by One T development to evidence the establishment of the Concessional Trust.
3. Clause 111 of the Deed states, under the heading "Purpose of this trust": "The purpose of this trust is for the hold all assets, of ENA Development Pty Ltd A.C.N 105 235 363 in the ENA Development Trust. The initial Assets; ● the bank accounts of the trustee, ENA Development Pty Ltd A.C.N 105 235 363 is a trust asset. ● the share floating registry portfolio in the name of the trustee ENA Development Pty Ltd A.C.N 105 235 363 (all shares past, present and future) is a trust asset. ● all past, present and future loans provided it to be provided is a trust asset. ● all liquid, floating, fixed assets, properties is a trust asset."

The Fixed Trust

1. There is in evidence a document dated 1 September 2009 purporting to appoint ENA as trustee of the Fixed Trust (described in the document as "Unit Trust - Fixed"). Mr Robert Sebie's brother, Mr Richard Sebie is said to be sole unit holder of the unit trust allegedly thereby established. The document purports to have been stamped at $200 on 4 September 2009.
2. I have grave doubts as to the genuineness of this document. There is evidence to suggest that it was not created on the date it bears, 1 September 2009, but over five years later, on 27 January 2015.
3. The title page of the purported 1 September 2009 document names "Onyx Tax Accountants" of South Granville and "Maddocks" Solicitors from Melbourne "c/- Cleardocs".
4. On 12 March 2022, Mr Max Florian, an employee of Mr Krejci, telephoned Mr Erkan Mentesh from Onyx Tax Accountants.
5. According to Mr Florian's unchallenged evidence before me, they had this conversation: "[Mr Florian]: Hi Erkan, I am calling from BRI Ferrier on behalf of the liquidator of ENA Development. I am calling about the section 530B notice. Mr Mentesh: Yes, ok. [Mr Florian]: What is your relationship with the company? Mr Mentesh: I was approached by Rose and Robert Sebie who wanted my assistance to set up the ENA Development Trust. They first got in contact with me in early 2015 through a reference provided by a former client. During that time I provided advice on setting up the trust and I prepared the Trust Deed using the services of Cleardocs.com. After preparing the Trust Deed, Robert Sebie advised me that he would get the trust deed stamped with the OSR. He then asked me for a screenshot on how an OSR registration stamp appears. I then provided it to him. [Mr Florian]: Was Robert the only one giving you the instructions? Mr Mentesh: Yes. Also, I want to make clear that I was not an accountant or a tax agent of the Company. My engagement was solely for the purpose of setting up the Trust." (Emphasis added.)
6. I allowed this evidence only as evidence that the conversation between Mr Florian and Mr Mentesh took place, and not as evidence that what Mr Mentesh said was true.
7. However, it shows that Mr Mentesh was available to give evidence that, first, he was only approached by Mr Robert Sebie and Mrs Rose Sebie concerning establishment of the Fixed Trust in "early 2015" and that Mr Robert Sebie made the enquiry Mr Mentesh describes concerning the "OSR registration stamp".
8. Following his conversation with Mr Florian, and also on 12 May 2022, Mr Mentesh sent Mr Florian an email attaching a copy of what purports to be the 1 September 2009 deed establishing the Fixed Trust.
9. That document appears to show that it was created by "Cleardocs" at 10:45am on 27 January 2015. The email also attached a set of instructions provided by "Cleardocs" in respect of establishing the purported trust, a tax invoice from "Cleardocs" to Onyx Tax Accountants on 27 January 2015 for "document package: Unit Trust - Fixed" for the client "ENA Development".
10. This material suggests that the document purporting to be a trust deed created on 1 September 2009 was not in fact created until 27 January 2015.
11. The document purports to have been stamped on 4 September 2009 for $200. The amount of stamp duty payable in respect of such a document as at 4 September 2009 was not $200, but was $500. [8]
12. A member of Mr Krejci's staff made an enquiry of the Office of State Revenue concerning the relevant fees assessment. On 17 May 2022 Mr Kevin Costello responded: "I refer to your request for information regarding Duties assessment 5558777-001. Unfortunately this Duties assessment is for a third party, possibly unrelated to ENA Development Pty Ltd. As such I am unable to provide any more information than that."
13. Mr Costello's reference to the Duties assessment being "for a third party" that was "possibly unrelated to ENA Development Pty Ltd" suggests that that document was lodged for stamping by an entity other than ENA.
14. Mr Jemmott, the only witness called by One T Development on this application, had no involvement with ENA until 2012 and had no involvement in the purported trust deed being stamped for duty. Mr Jemmott agreed he had no way of knowing whether the stamp was genuine.
15. Mr Krejci's evidence on this application squarely raised the issue of the provenance of the purported 1 September 2009 Trust Deed. It was open to One T Development to call those involved with the purported formation of the document to explain it. They did not do so.
16. There is no suggestion by One T Development that the Fixed Trust was established after 1 September 2009.
17. In its submission received following the hearing, to which I have referred, One T Development purported to place into evidence an email that Mr Mentesh sent to the solicitor then acting for One T Development, Mr Hall, on 22 May 2022, in which he stated, in respect of Mr Florian's affidavit, that "information is missing, re-worded, has errors and is inaccurate" and "I am confused why I am being put under duress to agree to information that is not accurate".
18. I did not give One T Development leave to adduce this evidence. Mr Bolton did not seek to cross-examine Mr Florian about his affidavit. Mr Mentesh's email was sent to the solicitor then acting for One T Development over two weeks prior to the hearing before me. As I have set out above, Mr Hall sought and was granted leave from Robb J to cease to act for One T Development on 9 June 2022. The result is that Mr Florian's evidence as to what Mr Mentesh said to him was unchallenged before me. In any event, nothing in Mr Mentesh's email to Mr Hall of 22 May 2022 explains the "Cleardocs" document to which I have referred.
19. This evidence suggests that Mr Krejci will be in a position to show that the Fixed Trust was not created by the purported 1 September 2009 document and, if established at all, was not established until January 2015. He may also be in a position to show that the duty stamp is not genuine.
20. In those circumstances Mr Krejci would be justified, in my opinion, in disputing that the Fixed Trust was created by the purported 1 September 2009 document and thus that subsequent records referring to the Fixed Trust as being so established are, to put the matter neutrally, not accurate.

One T Development's purported appointment as trustee

1. One T Development contends that it has been appointed as trustee of one or both of the Fixed Trust and the Concessional Trust.
2. I do not find it necessary to resolve, on this application, whether that is so.
3. Mr Krejci seeks advice as to whether he would be justified in treating the relevant assets as being owned by ENA beneficially.
4. He does not seek advice as to whether, assuming the assets are not held by ENA beneficially, they are held by ENA as trustee of the Fixed Trust, or as trustee of the Concessional Trust; let alone whether One T Development is now the trustee of one or other of those trusts.
5. I turn now to the assets the subject of Mr Krejci's application.

The Homebush Property

1. ENA became the registered proprietor of the Homebush Property on 18 April 2013.
2. Mr Jemmott said he was giving his evidence from the Homebush Property.
3. As I have mentioned, on 3 February 2022, Mr Krejci applied to be, and was, appointed as receiver over the "Assets of the ENA Trust".
4. In his affidavit in support of that application, [9] Mr Krejci said that: 1. based on the "limited books and records available to me at this early stage" of his appointment as liquidator, "I understand that ENA is and or was at least until the time of my appointment the trustee of the ENA Development Trust"; 2. he made the application to be appointed receiver "to protect the assets [he had] identified as possible trust assets"; 3. he had "at least some preliminary concerns about the legitimacy of the [purported 1 September 2009] Trust Deed"; 4. financial statements that he held at the time indicated that the Homebush Property was "held in Fixed Unit Trust 2009"; and 5. his investigations to 3 February 2022 revealed that ENA "appear[ed] to own the Homebush Property on trust for the ENA Trust".
5. Counsel then appearing for Mr Krejci [10] submitted in writing: "ENA is trustee of the ENA Development Trust, a unit trust (Trust). So far, [Mr Krejci] has been able to identify a property in Homebush, Sydney as an asset of the trust."
6. That submission overstated matters and did not reflect the more qualified evidence given by Mr Krejci that I have set out.
7. In his ex tempore reasons appointing Mr Krejci as receiver, Black J said: [11] "[The Liquidator] relies on his affidavit dated 3 February 2022 which, relevantly, refers to the fact that ENA was trustee of the Trust, and the Trust holds at least one asset, a commercial property at Homebush, which may now be used as a residential property."
8. Black J's findings, understandably, reflected the submissions made by counsel then appearing for Mr Krejci.
9. Before me, and based on material now to hand, Mr Krejci seeks advice that he would be justified in concluding that the Homebush Property is not the subject of any trust but it is, rather, beneficially owned by ENA.
10. The transfer to ENA dated 20 March 2013 shows a consideration of $610,000 and that ENA purchased the property from a mortgagee under power of sale. There is no evidence as to the funds used by ENA to purchase the Homebush Property.
11. There is in evidence what purports to be a minute of a meeting of ENA in its capacity as trustee of the Fixed Trust dated 22 March 2013 and attended by Mrs Rose Sebie, for ENA, and by Mr Richard Sebie.
12. The minute reads: "Minutes of Meeting of Corporate Trustee Amendment to the Trust - ENA Development Trust. ENA Development CAN 105235363, in its capacity as trustee, in accordance with section 127(1) of the Corporations Act 2001 (Cwth): The Unit Trust - Fixed ENA Development Trust. Minutes of a meeting of the directors of ENA Development Place Seven Hills Date 22nd of March 2013 Time 5:00pm Persons present Richard Sebie and Rose Sebie ● Richard Sebie took the chair with the meeting's approval. ● The meeting noted that the requirements for notice of the meeting had been satisfied and that the directors had approved the holding of the meeting at the place, on the date and at the time specified. ● The meeting resolved that [ENA] as trustee of the [Fixed Trust] declares the [Homebush Land] to be a trust asset. ● Under Section 82 of the Real Property Act 1900 (NSW) that [the Homebush Land] is to be deposited for safe custody in reference to the Original Trust Created on the 1st of September 2009. The chair closed the meeting. Signed as a true record of the meeting Date: 22nd of March 2013". (Emphasis in original.)
13. This is the first of a number of purported minutes of directors of ENA at which declarations of trust were made, on this occasion purportedly by ENA as trustee of the Fixed Trust.
14. The document thus purports to create an interest in dutiable property and was required to be stamped. [12]
15. The documents are thus "not available for use in law or equity for any purpose and may not be presented in evidence in a court … exercising civil jurisdiction" unless stamped or "transmitted to the Chief Commissioner in accordance with arrangements approved by the court". [13]
16. The arrangements "approved by the court" are set out in UCPR r 31.13, being the "usual undertaking" by the relevant person to transmit the instrument to the Chief Commissioner of State Revenue.
17. One T Development has, in its submissions received following the hearing, provided such an undertaking.
18. I have found that Mr Krejci would be entitled to conclude that the Fixed Trust was not created on 1 September 2009, as this minute recites, but rather, if at all, almost two years later, on 27 January 2015. As this minute is the only document to which One T Development points as causing the Homebush Property to become the subject of the Fixed Trust, Mr Krejci would, in my opinion, be entitled to conclude that it did not happen in the manner set out in the purported 22 March 2013 minute.
19. Hitherto, One T Development's contention has been that the Homebush Property is an asset of the Concessional Trust, rather than of the Fixed Trust.
20. Thus, on 22 September 2021, Mr Jemmott sent the NSW Land Registry Services an email stating, in relation to the Homebush Property: "The mentioned property that needs to be transfer[red] is owned by a Fixed Unit Trust called the ENA Development Trust. [14] "
21. And, in cross-examination before me, Mr Jemmott asserted that the Homebush Property was held on trust pursuant to the Concessional Trust. Thus, he gave this evidence: "Q. Which trust has the benefit of all of the assets that we are talking about in this proceeding? Is it the fixed trust or the concessional trust? A. Concessional trust. Q. Right, so it's definitely not the fixed trust? You just don't know, do you, which trust you say has the benefit of any of these assets? A. Concessional trust. Also page 153 to 162. Q. They've got nothing to do with the trust, do they? They're a minute of creditor's meeting dated 25 April. Do you say that that meeting somehow transferred assets to a trust, do you? A. Sorry, 14 - sorry, I'm still looking through my affidavit. 14 - no. 144 to 145. Q. You're now picking the concessional trust as having the benefit of all these assets. Is that right? A. Yes, you're right. Q. That's so even though you say that the ENA Fixed Trust minute that I took you to earlier, which does not reflect that loan, is also accurate? A. Yes."
22. I gained the strong impression that, when answering these questions, Mr Jemmott was searching through annexures to his affidavits and endeavouring to locate a document that enabled him to give the answer he wanted to give; in this case, that the Homebush Property was the subject of the Concessional Trust. As I have stated, I am not satisfied that Mr Jemmott has any personal knowledge about these matters.
23. It is true that there are documents, purporting to be financial records of the Fixed Trust, that purport to show the Homebush Property as an asset of that trust. For example, documents purporting to be "Annual Reports" for FY2016, FY2017 and FY2018 show the Fixed Trust as having a non-current asset described as "property" valued at $690,000 and at FY2019 at $740,000.
24. On the other hand, there is in evidence a purported "Statement of Financial Performance for the ENA Development Trust - Concessional Trust fixed Unit" FY2020 that records the Homebush Property as an asset with a value of $790,000.
25. There is also a document called "Annual Report" of ENA dated 31 December 2021, signed by Mr Jemmott as director, and which he initially affirmed to be accurate, recording the Homebush Property as a non-current asset of ENA, albeit with a note that it "is held in Fixed Unit Trust 2009"; that is, not by the Concessional Trust.
26. These records were not provided to Mr Krejci in response to notices he sent pursuant to ss 530A and 530B of the Corporations Act to Mrs Rose Sebie, or to Mr El-Masri. Rather, the documents were sent by Mr El-Masri to Mr Krejci under cover of an email dated 6 May 2022.
27. Mr Krejci is entitled to be sceptical as to whether these documents accurately reflect the correct financial position in relation to the Homebush Property; or at all.
28. As I have said, there is strong evidence suggesting the Fixed Trust was not, as One T Development asserts, and as the face of the documents suggest, created on 1 September 2009. That provides a strong foundation for doubting the accuracy of any document created thereafter that suggests the existence of a Fixed Trust, or purports to describe its assets.
29. Despite Mr Jemmott's assertions to the contrary in cross-examination, I see no basis to conclude that the Homebush Property is the subject of any other trust, including the Concessional Trust.
30. I think Mr Rose was correct to submit that there are no reliable documentary records, nor any reliable basis, upon which it is possible to conclude that the Homebush Property is held on any trust.
31. I advise Mr Krejci that he will be justified and will be acting reasonably in treating the Homebush Property as beneficially owned by ENA.

The Fund

1. The Fund represents the proceeds of sale of the Chiswick Property.
2. The Chiswick Property was owned by Mr Robert Sebie, and his former wife. ENA appears to have advanced $1.4 million to Mr Robert Sebie to fund his purchase of that property.
3. Mr Robert Sebie and his then wife contracted to sell the property to a third party, Mr and Mrs Pham. Litigation ensued. Since 2014 there have been almost 40 judgments of this Court, and the Court of Appeal, arising from this transaction. [15]
4. The loan between ENA and Mr Robert Sebie was recorded in a document called "Loan (Heads of Agreement)" dated 31 August 2005, a document called "Secured Loan Agreement" dated 5 September 2005, a special resolution by Mrs Rose Sebie as director of ENA also dated 5 September 2005. There is no record in any of those documents of the loan being made by ENA as trustee.
5. Ultimately, ENA obtained judgment for possession of the Chiswick Property against Mr Robert Sebie.
6. However, ENA has not yet established its entitlement to any part of the Fund. Recently, Bell P [16] and Basten JA described ENA's claim to the Fund as "murky and unresolved". [17] Brereton JA, in dissent on this question, expressed a different view, stating that ENA had a "good arguable claim" but qualified that view in a number of ways, including by recognising "that there was a dispute as to the authenticity of this transaction, including as to the date that appears on the duty stamp affixed to the 'Secured Loan Agreement'", being the document to which I have referred at [87].
7. I am not in a position to make any finding as to whether Mr Krejci will be able to establish that ENA is entitled to the Fund.
8. Accordingly, any advice that I give to Mr Krejci in relation to ENA's beneficial entitlement to the Fund can only be given on the assumption that Mr Krejci, as liquidator of ENA, will in due course be able to establish such an entitlement.
9. As to whether, assuming ENA is entitled to the Fund, its entitlement is as trustee, rather than beneficially, One T Development relies on three documents.
10. The first document is what purports to be "Minutes of Meeting of Corporate Trustee", being ENA in its capacity as trustee of "ENA Development Trust Concessional".
11. This a further document the subject of One T Development's undertaking as to stamp duty.
12. The minute is dated "17rd" [sic] September 2005 and purports to be a minute of a meeting of directors of ENA, and to be signed by Mrs Rose Sebie.
13. It is in the following terms: "Minutes of Meeting of Corporate Trustee Amendment to the Trust - ENA Development Trust Concessional. ENA Development ACN 105235363, in its capacity as trustee, in accordance with section 127(1) of the Corporations Act 2001 (Cwth): ENA Development Trust Concessional. Minutes of a meeting of the director of ENA Development Pty Ltd Place Seven Hills Date 17rd [sic] of September 2005 Time 4:00pm Persons present Rose Sebie, Ramzy Sebie. ● Ronald Jemmott took the chair with the meeting's approval. ● The meeting noted that the requirements for notice of the meeting had been satisfied and that the directors had approved the holding of the meeting at the place, on the date and at the time specified. ● The meeting resolved that the ENA Development Pty Ltd A.C.N 105 235 363 as trustee of the ENA Development Trust declared; a) The Secure 'Loans' which unified monies provided by ENA Development Pty Ltd derived from Rose Sebie, Richard Sebie, Ramzy Sebie To Robert Sebie for the purposed [sic] to purchase the 11 Tutt Crescent Chiswick NSW 2046 specific folio 2/241738 is a trust asset. b) The Secured 'Loans' are dated the 31st of August 2005, 5 September 2005. The monies provided of $1,379,315 to Robert Sebie on 15 September 2005 is a trust asset. c) The Share Floating Registry Portfolio in the name of the Trustee ENA Development Pty Ltd A.C.N 105 235 363 (all shared past, present and future) is a trust asset. d) The Bank Accounts of the Trustee, ENA Development Pty Ltd A.C.N 105 235 363 is a trust asset. ● The above items a) b) c) and d) are in the safe custody in reference to the Original Trust Concessional Created on the 31st of August 2005. The Chair closed the meeting. Signed as a true record of the meeting Date: 17th of September 2005". (Emphasis in original.)
14. The minute thus purports to record a resolution that the "Secure 'Loans'" advanced to Mr Robert Sebie to purchase the Chiswick Property be the subject of the Concessional Trust.
15. The minute records, in the first bullet point, that Mr Jemmott "took the chair with the meeting's approval".
16. However, Mr Jemmott's evidence is that he did not become involved in any way with ENA until, at the earliest, 2012. There is no evidence from Mrs Rose Sebie, to explain how it could be that Mr Jemmott was recorded as having chaired a meeting seven years before he had any involvement with ENA.
17. A further factor pointing to the probability that a meeting did not take place on the date the minute bears is the description of the date as being the "17rd" of September 2005. It appears unlikely that this is a typographical error and more likely that the date has been manually altered. The original document is not in evidence. If, as appears to be the case, the date of the document has been changed, it is hard to be confident that the document, otherwise records events which actually happened.
18. Equally perplexing are two further purported "Minutes of Meeting of Corporate Trustee", each dated "27nd" [sic] July 2015. Each of these documents is the subject of One T Development's stamp duty undertaking. Each also purports to deal with the "Secure 'Loans'" made by ENA to Mr Robert Sebie to Purchase the Chiswick Property.
19. The first is in the following terms: "Minutes of Meeting of Corporate Trustee Amendment to the Trust - ENA Development Trust. ENA Development ACN 105235363, in its capacity as trustee, in accordance with section 127(1) of the Corporations Act 2001 (Cwth): The Concessional ENA Development Trust. Minutes of a meeting of the directors of ENA Development Place Homebush Date 27nd [sic] of July 2015 Time 10:00am Persons present Ramzy Sebie, Rose Sebie and Ronald Jemmott. ● Ronald Jemmott took the chair with the meeting's approval. ● The meeting noted that the requirements for notice of the meeting had been satisfied and that the directors had approved the holding of the meeting at the place, on the date and at the time specified. ● The meeting resolved that the ENA Development Pty Ltd A.C.N 105 235 363 as trustee of the ENA Development Trust declares; a) The Secure 'Loans' which unified monies provided by ENA Development Pty Ltd / Rose Sebie derived from Richard Sebie, Ramzy Sebie to Robert Sebie for the purposed [sic] to purchase the 11 Tutt Crescent Chiswick NSW 2046 specific folio 2/241738 is a trust asset. b) The Secured 'Loans' are dated the 5 September 2005, and 17 July 2015. The monies provided $1,379,315 15 September 2005 and $504,759 on 17 July 2015 is a trust asset. c) The Share Floating Registry Portfolio in the name of the Trustee ENA Development Pty Ltd A.C.N 105 235 363 (all shares past, present and future) is a trust asset. d) The Bank Accounts of the Trustee, ENA Development Pty Ltd A.C.N 105 235 363 is a trust asset. ● The above items a) b) and c) are in the safe custody in reference to the Original Concessional. Trust Created on the 31st of August 2005. The chair closed the meeting. Signed as a true record of the meeting Date: 27th of July 2015". (Emphasis in original.)
20. It is thus in identical form to the 17 September 2005 document, save that it purports to be a meeting of ENA as trustee of "The Concessional ENA Development Trust" [18] and purports to be signed by Mr Jemmott (who was not then a director of ENA) as well as by Mrs Rose Sebie.
21. Again, it appears likely that the date of the document has been changed as it purports to record a meeting on the "27nd" of July 2015. The original document is not in evidence.
22. The other minute dated 27 July 2015 is in the following terms: "Minutes of Meeting of Corporate Trustee Amendment to the Trust - ENA Development Trust. ENA Development CAN 105235363, in its capacity as trustee, in accordance with section 127(1) of the Corporations Act 2001 (Cwth): ENA Development Trust fixed unit Minutes of a meeting of the director of ENA Development Pty Ltd Place Homebush Date 27nd [sic] of July 2015 Time 10:00am Persons present Ramzy Sebie, Rose Sebie and Ronald Jemmott. ● Ronald Jemmott took the chair with the meeting's approval. ● The meeting noted that the requirements for notice of the meeting had been satisfied and that the directors had approved the holding of the meeting at the place, on the date and at the time specified. ● The meeting resolved that the ENA Development Pty Ltd A.C.N 105 235 363 as trustee of the ENA Development Trust declares; a) The Secure 'Loans' which unified monies provided by ENA Development Pty Ltd / Rose Sebie, derived from Richard Sebie, Ramzy Sebie To Robert Sebie for the purposed [sic] to purchase the 11 Tutt Crescent Chiswick NSW 2046 specific folio 2/241738 is to be to be [sic] a trust asset. b) The Secured 'Loans' are dated the 5 September 2005, and 17 July 2015. The monies provided $1,379,315 15 September 2005 and $504,759 on 17 July 2015 to be to be [sic] a trust asset. c) The Share Floating Registry Portfolio in the name of the Trustee ENA Development Pty Ltd A.C.N 105 235 363 (all shares past, present and future) is a trust asset. ● The above items a) b) and c) are in the safe custody in reference to the Original Trust Created on the fixed unit 1st of September 2009. The chair closed the meeting. Signed as a true record of the meeting Date: 27th of July 2015". (Emphasis in original.)
23. Like the document referred to at [102], this document purports to record a meeting on the "27nd" of July 2015. As with that document, and that at [96], it is hard to be confident as to its integrity.
24. It is also signed by Mrs Rose Sebie and Mr Jemmott, and purports to be made by ENA as trustee of the "ENA Development Trust Fixed Unit". It refers in the final bullet point to the "Original Trust Created on the Fixed Unit 1st of September 2009" rather than, as in the other minute of the same day, to the "Original Trust Concessional Created on the 31st of August 2005". It also purports to deal only with items a), b) and c) in the third bullet point (that is, the "Secure 'Loans'", the "Secured 'Loans'" and the "Share Floating Registry Portfolio") and not the "Bank Accounts" referred to in subpar d) of the third bullet point, as referred to in both the 17 September 2005 "minute" and the other 27 July 2015 "minute".
25. One T Development has not attempted to explain how these minutes were created, nor to call evidence, particularly from Mrs Rose Sebie, to explain the patent inconsistencies between the two 27 July 2015 "minutes".
26. Mr Jemmott did not attempt to explain the inconsistencies between these documents in his evidence.
27. Assuming that the Fund represents the proceeds of the "Secure 'Loans'" referred to in each of these "minutes", the Fund is not shown as an asset and the Annual Reports of the Fixed Development Trust for FY2016, FY2017, FY2018, FY2019 and FY2020, although an amount of some $1.8 million which could represent the Fund, is shown in a document purporting to be "ENA Development Trust Concessional Trust & Fixed Unit, Combined Accounts" for FY2018, FY2019 and FY2021.
28. However, the ENA Annual Report of 31 December 2021, to which I have referred, and which Mr Jemmott signed as being correct, shows the Fund as being an asset of ENA itself. As I have said, [19] in that Annual Report, the Homebush Property is recorded as being "held in Fixed Unit Trust 2009". No such qualification is contained in the 31 December 2021 report so far as concerns the Fund.
29. In these circumstances, my conclusion is that Mr Krejci would be justified in concluding that none of the minutes purporting to evidence a declaration of trust over the "Secure 'Loans'" purportedly made by ENA to Mr Robert Sebie for the purpose of purchasing the Chiswick Property is an accurate reflection of any resolution actually made. The second "minute" of 27 July 2015 also refers to the "Original Trust Created on the fixed unit [sic] 1st of September 2009" and thus also has the "Cleardocs" difficulties I have discussed above.
30. It follows that Mr Krejci would be justified in treating the Fund as an asset to which ENA is beneficially entitled if (but only if) he is able to establish that it is an asset to which ENA is entitled in the first place.

The ASX Shares

1. These are the shares the subject of the "Share Float Registry Portfolio" referred to in each of the purported directors' minutes of 27 July 2015.
2. Those minutes, inconsistently, purport to record a resolution by the directors of ENA that the shares be held by ENA as trustee of the Concessional Trust and the Fixed Trust.
3. The "Share Float Registry Portfolio" is also referred to in the purported 17 September 2005 minutes which, as I have said, purport to record Mr Jemmott as taking the chair of the meeting, some seven years before his involvement with ENA.
4. The shares are not said to be an asset of either trust in the financial statements provided to Mr Krejci by Mr El-Masri on 6 May 2022.
5. Trading in those shares commenced on 3 November 2003, some two years prior to the creation of the Concessional Trust.
6. The shares are held in an account with Commonwealth Securities. There is no evidence that that entity was ever notified of either purported trust, despite provision being made for the accounts to be held in the name of a trust.
7. In these circumstances, my opinion is that Mr Krejci would be justified in concluding that none of the documents purporting to record a declaration of trust in relation to the shares is accurate and that Mr Krejci would be entitled to conclude that the shares are held by ENA beneficially.

The CBA Funds

1. In its submissions delivered prior to the hearing, One T Development did not challenge Mr Krejci's contention that the CBA Funds were held beneficially by ENA.
2. One T Development did not refer further to this aspect of the matter in its submissions received following the hearing.

Conclusion

1. Pursuant to s 90-15 of Sch 2 to the Corporations Act I order that the liquidator of ENA would be justified, and would otherwise be acting reasonably, in treating the following assets of ENA as assets to which that company is beneficially entitled: 1. the land contained in folio identifier 36/SP74958, being the land situated at and known as 36/146-152 Parramatta Road, Homebush NSW 2140; 2. the shares and securities listed on the Australian Stock Exchange and which are traded through Commonwealth Securities Limited account XXX maintained in the name of ENA; and 3. monies in an account maintained by ENA with Commonwealth Bank of Australia account XXX maintained in the amount of $9,604.14.
2. Assuming that the liquidator of ENA is able to establish ENA's entitlement to the funds paid into Court in proceedings 2015/325044, pursuant to section 90-15 of Sch 2 to the Corporations Act I order that the liquidator of ENA would be justified, and would otherwise be acting reasonably, in treating those funds as being an asset to which ENA is beneficially entitled.
3. I stand the matter over to the Corporations List on 18 July 2022 for directions and for resolution of any matters arising from these reasons.

Endnotes

1. See for example, In the matter of Go Energy Group Ltd [2019] NSWSC 558 at [16] (Black J).
2. See for example, In the matter of Montpac Pty Ltd (in liquidation) and Global Network Link Pty Ltd (in liquidation) [2020] NSWSC 1237 at [8]-[11] (Black J); Nikitins (Liquidator) v EncoreFX (Australia) Pty Ltd (in liq), in the matter of EncoreFX (Australia) Pty Ltd (in liq) (No 2) [2021] FCA 27 (Colvin J); Re Mandeville Group Pty Ltd (In Liq) [2020] VSC 293 at [128]-[138] (Sloss J); Re Stay In Bed Milk and Bread Pty Ltd (In Liq) (2019) 58 VR 446; [2019] VSC 181 at [10]-[13] (Randall AsJ); Re Matthew Forbes Pty Ltd (In Liq) [2018] VSC 331 at [19]-[20] (Riordan J).
3. In the matter of ENA Development Pty Ltd (in liq) (Supreme Court (NSW), Robb J, 9 June 2022, unrep).
4. Uniform Civil Procedure Rules 2005 (NSW) r 7.1 and 7.2.
5. (2002) 55 NSWLR 149; [2002] NSWCA 230 (Stein JA; Mason P and Sheller JA agreeing).
6. [2018] NSWSC 1523.
7. at [22]-[28].
8. See Duties Act 1997 (NSW) s 58; amended pursuant to the enactment of the State Revenue and Other Legislation Amendment (Budget Measures) Act 2008 (NSW), s 2(2)(b).
9. Affirmed on 3 February 2022.
10. Mr Rose was not then appearing for the plaintiff.
11. In the matter of ENA Development Pty Ltd (in liq) (Supreme Court (NSW), 3 February 2022, Black J, unrep).
12. Sections 8(1)(b)(ii) and 11(1)(l) of the Duties Act.
13. Section 304(1) and (2) of the Duties Act.
14. That is, the Concessional Trust: see [25] above.
15. Summarised in Sebie v Pham (No 2) [2021] NSWCA 274 (Bell P, Basten and Brereton JJA) and Sebie v Pham (No 3) [2021] NSWCA 277 (Bell P, Basten and Brereton JJA); see also Sebie v Pham (No 4) [2021] NSWCA 326 (Meagher JA). Related litigation continues, see Sebie v Bresic Whitney Balmain Pty Ltd [2022] NSWSC 816 (Rothman J) and, most recently, Sebie v Pham (No 5) [2022] NSWCA 111 (Brereton JA).
16. As the Chief Justice then was.
17. Sebie v Pham (No 3) at [19].
18. As opposed to "ENA Development Trust Concessional".
19. See [77] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2022