Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth

Introduction

1. These reasons concern an application by the liquidator of Mulcox Pty Limited (in liquidation) ACN 121 370 456 (the Liquidator and the Company) to be appointed as receiver of the property, assets, and undertaking of the Mulet Family Trust and the Mulet Investment Trust, with powers of sale in respect of the property, assets, and undertaking of each trust, and a direction pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) set out in Schedule 2 to the Corporations Act 2001 (Cth) that the Liquidator distribute the net sale proceeds to creditors of the relevant trust in accordance with ss 555 and 556 of the Corporations Act. [1]
2. For the reasons that follow, I have determined that orders should be made substantially in the terms sought by the Liquidator insofar as they concern the Mulet Family Trust.

Salient facts

1. The Company was registered on 23 August 2006.
2. On 3 February 2022, this Court made orders winding up the Company and appointing Mr Joshua Philip Taylor of Taylor Insolvency as its liquidator (the Liquidator).
3. At the time of the winding up order, Mr Bernado Mulet was the sole director and secretary of the Company. Mr Bernado Mulet and Ms Kylee Mulet each own 50 per cent of the shares in the Company.
4. The Liquidator's investigations have identified that the Company was the trustee for two trusts - the Mulet Family Trust and the Mulet Investment Trust.
5. The Mulet Family Trust was established by a Deed of Settlement dated 23 August 2006. The Company was appointed as trustee of the trust. The beneficiaries of the trust are Mr Bernado Mulet and Ms Kylee Mulet and their parents, siblings, children, grandchildren, and other relatives included in the definition of "General Beneficiaries" in the Deed of Settlement.
6. Pursuant to clause 28 of the Deed of Settlement, the office of trustee of the Mulet Family Trust was vacated upon the Company entering into liquidation.
7. The Mulet Investment Trust was established by a Discretionary Trust Deed dated 25 June 2010, pursuant to which the Company was appointed as trustee of the trust.
8. Pursuant to clause 5.2 of the Discretionary Trust Deed, the office of trustee of the Mulet Investment Trust was vacated upon the Company entering into liquidation.
9. There is no evidence that the appointors of the Mulet Family Trust and the Mulet Investment Trust appointed new trustees after the Company entered into liquidation. Accordingly, the Company is presently the bare trustee of any assets that it held at the time of the winding up order in its capacity as trustee of those trusts.
10. The Liquidator's investigations have been hindered by the failure of Mr Bernado Mulet to complete a Report on Company Activities and Property and a director's questionnaire, and by his failure to provide to the Liquidator any books and records for the Company other than the trust deeds for the Mulet Family Trust and the Mulet Investment Trust, the tax returns and financial statements for the Mulet Family Trust for the 2015 and 2016 financial years together with a general ledger for that trust for the 2016 financial year, and the tax returns and financial statements for the Mulet Investment Trust for the 2016 and 2017 financial years together with a general ledger for that trust for the 2017 financial year. The Liquidator has not been provided with any more recent books and records for the Company or the trusts.
11. The Company's former accountant has informed the Liquidator that the Company did not conduct any business other than as trustee of the Mulet Family Trust and the Mulet Investment Trust, and as trustee for a superannuation fund. It appears that the Liquidator has not been provided with any records or further information relating to the superannuation fund.
12. The Liquidator's investigations have revealed that the Company owns units 48 and 49 in Strata Plan 80936 at 57A Rhodes Street, Hillsdale, New South Wales (the Properties). The Liquidator has not identified any other assets owned by the Company.
13. The Properties are recorded as assets of the Mulet Family Trust in the tax return and financial statements for the 2016 financial year for that trust. The Company has incurred debts to the Owners Corporation of Strata Plan 80936 in respect of the Properties. The Owners Corporation was the petitioning creditor on whose application the Company was wound up.
14. The limited information available to the Liquidator does not suggest that the Properties were transferred out of the Mulet Family Trust after the 2016 financial year.
15. According to the financial statements prepared for the Mulet Investment Trust for the 2017 financial year, the assets of the trust consisted principally of unsecured loans. The Liquidator has been unable to identify those loans, and does not know whether they remain owing to the Company as trustee of the Mulet Investment Trust. The Liquidator's investigations have not revealed any other assets of the Mulet Investment Trust. The Liquidator has not received any proof of debt from any person claiming to be a creditor of the Investment Trust.
16. On the basis of all of that information, the Liquidator deposed in his affidavit affirmed on 29 September 2023 that he believes that the Company owned the Properties in its capacity as trustee of the Mulet Family Trust, that the Company did not undertake any activities or conduct any business in its own right, and that it incurred debts in respect of the Properties in its capacity as trustee of the Mulet Family Trust.
17. In his affidavit affirmed on 29 September 2023, the Liquidator deposed that the Owners Corporation has submitted a proof of debt in the amount of $9,728.02 in respect of strata fees for the Properties, and that the Owners Corporation's costs of the winding up application in the sum of $7,903.03 are also required to be paid in accordance with the winding up orders. The strata fees are continuing to accrue, and the amount owing as at the date of the Liquidator's affidavit had increased to $9,519.35.
18. The Liquidator has not received a proof of debt from any other person claiming to be a creditor of the Company. The Liquidator's investigations have not identified any other creditor or potential creditor of the Company.
19. The Liquidator has given evidence that there is no money in the liquidation available to pay the strata fees and rates in respect of the Properties, and to pay the liquidator's remuneration and expenses, and that the Company has no assets other than the Properties.
20. In those circumstances, the Liquidator seeks orders that will facilitate the sale of the Properties, with the proceeds of sale being applied to indemnify the Company as trustee of the Mulet Family Trust for the liabilities incurred to the Owners Corporation in the Company's capacity as trustee. The Liquidator has given evidence that he obtained an appraisal of the likely sale price of the Properties in March 2022 from a Mr Nick Pappas and a Mr Clay Chigwidden, who opined that the sale price for the Properties would be in the range of $115,000 to $135,000 for unit 48 and in the range of $180,000 to $210,000 for unit 49, and that the sale would incur marketing costs of $5,790.08 plus a selling agent's commission of 2.75 per cent (including GST).
21. Although he had not identified any assets held by the Company in its capacity as trustee of the Mulet Investment Trust, the Liquidator deposed that he considered it "prudent to apply to be made a receiver of the Investment Trust to ensure that any assets which may be identified or claims which may be made in the future can be properly dealt with in the liquidation of the Company".
22. In his affidavit affirmed on 29 September 2023, the Liquidator deposed that he estimated that "the total costs of the liquidation and receivership" will be in the order of $67,000 (plus GST), including his costs and work in progress to date, estimated costs of concluding the sale of the Properties and the winding up of the Company, and estimated legal costs. There is no evidence of the basis on which the Liquidator has arrived at the component of that estimate relating to his remuneration (including the hourly rates that have been applied if the estimate is has been arrived at using time-based charging). Nor was there any evidence of the hourly rates that are proposed to be charged by the Liquidator if appointed as receiver. The Liquidator deposed that he anticipates that there will be a surplus available for distribution.
23. At the hearing on 2 November 2023, Mr Bernado Mulet, the trustee in bankruptcy for Mr Bernado Mulet, and Mr Sebastian Mulet were all granted leave to be heard. Counsel for the trustee in bankruptcy informed the Court that the trustee did not object to Mr Bernado Mulet being granted leave to be heard separately from the trustee. Mr Sebastian Mulet also appeared by counsel. Mr Bernado Mulet appeared in person.
24. Mr Sebastian Mulet is the son of Mr Bernado Mulet and Ms Kylee Mulet. In an affidavit sworn on 1 November 2023, Mr Sebastian Mulet deposed that he was aware that the Company is in liquidation, that the Company was formerly the trustee of the Mulet Family Trust, and that the Properties were assets of that trust. Mr Sebastian Mulet opposes the Liquidator's application. He wishes to avoid the Properties being sold by being appointed as the trustee of the Mulet Family Trust and by being "given an opportunity to make gifts of cash to the Mulet Family Trust to enable the debts that [the Company] incurred in the administration of the trust to be paid from liquid assets of the trust instead of by selling the Properties".
25. Mr Sebastian Mulet deposed that he had paid the amounts owing to the Owners Corporation on 31 October 2023 as a "gift" to the Mulet Family Trust, and that he understood that there are no other creditors of the Company and that the only outstanding fees are the costs of the Liquidator. Mr Sebastian Mulet gave evidence that he undertakes, if appointed as trustee of the Mulet Family Trust, to pay the Liquidator's remuneration in such amount as the Court may determine, and that he is willing to pay the sum of $40,000 into Court as security for that undertaking pending the Court's determination of the Liquidator's remuneration. Mr Sebastian Mulet gave evidence that, if the Liquidator's remuneration exceeded $40,000, then he was "confident that if I were the new Trustee of the Mulet Family Trust, I could borrow money on the security of the properties (they being currently unencumbered) and sufficient to pay the liquidator's fees". Mr Sebastian Mulet annexed to his affidavit a copy of a statement for his account #888 held with the Commonwealth Bank showing a balance of $40,000 as at 1 November 2023. It appears from the statement that the credit balance of that account is attributable solely to transfers from another Commonwealth Bank account #861, and that money is regularly transferred to and from the two accounts. There is no evidence of the identity of the holder of account #861. In his oral submissions made during the hearing on 2 November 2023, counsel for Mr Sebastian Mulet referred to the proposed $40,000 payment as a payment to be made by "the Mulet family". It was submitted that "there would be significant destruction of value" if the Properties that the Liquidator had estimated were worth between $295,000 and $345,000 were sold to pay the Liquidator's fees which had been estimated in the amount of $67,000, prior to any determination of reasonableness.
26. Mr Sebastian Mulet has not yet made any application to be appointed as the trustee of the Mulet Family Trust. At the hearing on 2 November 2023, counsel for Mr Sebastian Mulet proposed that timetabling orders be made to facilitate the determination of an application by the Liquidator to fix the amount of his remuneration, and for an application to be made by Mr Sebastian Mulet under s 70 of the Trustee Act 1925 (NSW) to be appointed as the trustee of the Mulet Family Trust and the Mulet Investment Trust, and that the Liquidator's application be adjourned to be heard together with those applications. It was proposed that the $40,000 payment would be made into the Mulet Family Trust after the appointment of a new trustee of that trust, and that those funds would then be available to satisfy the Company's right of indemnity in respect of liabilities incurred as trustee, on the basis that the only remaining liability would be the winding up costs.
27. The trustee in bankruptcy for Mr Bernado Mulet does not oppose the Liquidator's application, but informed the Court that the trustee will wish to be heard about the future distribution of any surplus funds from the sale of the Properties after payment of creditors of the Mulet Family Trust and after payment of the Liquidator's remuneration. Counsel for the trustee in bankruptcy submitted that any surplus will likely need to be paid for the benefit of the beneficiaries of the Mulet Family Trust, rather than simply being distributed to the shareholders of the Company. Counsel submitted that the manner in which this is to be achieved will depend on whether or not a new trustee has been appointed to the trust by the time at which the surplus funds become available for distribution. Counsel identified a question about whether Mr Bernado Mulet, as the sole appointor under the Deed of Settlement establishing the Mulet Family Trust, remains entitled to appoint a new trustee notwithstanding his bankruptcy. That question will arise for consideration on any future application for the appointment of a new trustee, and any application by the Liquidator for directions concerning the distribution of any surplus funds.
28. As I have mentioned earlier in these reasons, the trustee in bankruptcy did not oppose Mr Bernado Mulet being granted leave to be heard separately from the trustee.
29. Mr Bernado Mulet appeared in person and relied on written submissions that he had emailed to my Associate shortly after the hearing began. He was given the opportunity to supplement those submissions orally, but did not wish to do so. In his written submissions, Mr Bernado Mulet made complaints about the conduct of his trustee in bankruptcy, and complained that the Liquidator had "supplied false costings" by "providing a payout figure" of $100,000 in a communication with Mr Bernado Mulet on 12 October 2023, notwithstanding that the Liquidator's affidavit estimated his remuneration and costs as approximately $67,000 (plus GST). There was no evidence in relation to Mr Bernado Mulet's complaints. In circumstances where his written submissions were made available to the Liquidator and the trustee in bankruptcy only after they were emailed to my Associate, neither the Liquidator nor the trustee in bankruptcy had an opportunity to respond to the complaints and allegations in the written submissions.
30. As counsel for the Liquidator submitted, Mr Sebastian Mulet's proposal to be appointed as trustee of the Mulet Family Trust and the Mulet Investment Trust emerged only 24 hours before the hearing of the Liquidator's application, in circumstances where the Company entered into liquidation almost two years ago and the Liquidator's application was filed on 6 October 2023. Mr Sebastian Mulet did not consult with the Liquidator before making the payments to the Owners Corporation that I have referred to above on 31 October 2023.

Applicable legal principles

1. A trustee is personally liable for liabilities and expenses incurred in the execution of the trust, but is entitled to be indemnified out of the trust assets against those liabilities and expenses (whether by recoupment or exoneration). The trustee's right of indemnity takes priority over the beneficiaries' claim on the trust assets. A court of equity will assist the trustee to realise trust assets in order to satisfy the trustee's right of indemnity, and it is therefore said that the trustee has an equitable charge or lien over the trust assets. That charge or lien is a proprietary interest in the trust assets, which has been described as being in the nature of a floating charge over all of the trust assets that secures the balance of the account as between trustee and beneficiary from time to time. [2]
2. Where the trustee is removed and replaced, the outgoing trustee retains its right of indemnity and its equitable charge over the trust assets in respect of liabilities and expenses that the former trustee incurred by reason of acting as trustee. [3]
3. The assistance that a court of equity will give to a trustee or former trustee to realise trust assets to satisfy the right of indemnity is in the form of an order for judicial sale or the appointment of a receiver with a power of sale. [4]
4. Upon the winding up of a company that is, or was formerly, the trustee of a trust, the right of indemnity of the trustee or former trustee, and its equitable charge over the trust assets, vest in the liquidator. The liquidator can exercise that right of indemnity in respect of liabilities and expenses that were incurred by the company as trustee, including the costs of the winding up - the liquidator's remuneration and expenses. [5] One course of action available to the liquidator of a former trustee is to seek appointment as a receiver of the trust assets with a power to sell those assets, by way of enforcement of the equitable charge that supports the former trustee's right of indemnity. [6]

Consideration and determination

1. In the present case, the Company's right to be exonerated out of the assets of the Mulet Family Trust for liabilities and expenses incurred as trustee of that trust - including the costs of winding up of the Company - has vested in the Liquidator. In my opinion, it is appropriate in all the circumstances to make the order sought by the Liquidator appointing him as the receiver of the property, assets, and undertaking of the Mulet Family Trust by way of enforcement of the equitable charge that supports the right of indemnity. However, the Liquidator's remuneration and costs are the only remaining liabilities and costs in respect of which the right of indemnity applies, and the Liquidator's estimated total of his remuneration and costs up to and including the completion of the winding up is $67,000 (plus GST). According to the Liquidator's evidence referred to at [22] above, the sale of unit 48 would raise more than sufficient funds to satisfy the right of indemnity. It is not necessary for both Properties to be sold. Accordingly, the terms of the order appointing the Liquidator as receiver of the property, assets, and undertaking of the Mulet Family Trust will preclude the Liquidator from selling unit 49 without further order of the Court.
2. It will be appropriate in due course for Liquidator's reasonable remuneration and costs properly incurred as liquidator, and the receiver's reasonable remuneration and costs properly incurred as receiver, to be paid out of the sale proceeds of unit 48. However, the orders will preclude the payment of any remuneration out of the sale proceeds until such time as the Court has fixed the amount of the remuneration. The Liquidator's remuneration for work performed in his capacity as such will be governed by the Court's inherent equitable jurisdiction to allow the liquidator appointed to a corporate trustee to have his or her remuneration paid out of the trust assets. [7] His remuneration as receiver will be fixed by the Court pursuant to r 26.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which confers power to approve and fix the remuneration of a court-appointed receiver that is then able to be drawn from the assets to which the receiver has been appointed.
3. The terms of the order will also preclude the receiver from distributing any surplus funds and assets of the Mulet Family Trust without further order of the Court. It will be incumbent on the receiver to make an application for orders permitting the distribution of such surplus funds and assets together with the application for orders fixing his remuneration. That will facilitate the Court addressing the issues raised by the trustee in bankruptcy at that time. [8] Any application by Mr Sebastian Mulet, or any other person, for the appointment of a new trustee to the Mulet Family Trust, should be made promptly, in order to ensure that the application is able to be heard and determined prior to, or together with, applications concerning the remuneration of the Liquidator and the receiver and the distribution by the receiver of surplus funds and assets of the Mulet Family Trust.

Orders

1. For all of the reasons above, the orders of the Court are: 1. Order that Joshua Philip Taylor be appointed as receiver of the assets, property and undertaking of the Mulet Family Trust (ABN 78 687 002 275) (the Family Trust and the Receiver). 2. Subject to order 3 below, order that the Receiver have the powers set out in sub-ss 420(2)(a)-(c), (e)-(g) and (o)-(r) of the Corporations Act 2001 (Cth), as if references therein to "the corporation" were references to the Family Trust. 3. Order that the Receiver's powers conferred by order 2 above do not extend to the sale of Unit 49 at 57A Rhodes Street, Hillsdale, New South Wales (being Lot 49 in Strata Plan 80936), subject to any further order of the Court to the contrary. 4. Subject to order 5 below, order that the Receiver is to distribute the net proceeds of sale of the assets, property and undertaking of the Family Trust to pay creditors of the Family Trust in accordance with ss 555 and 556 of the Corporations Act 2001 (Cth). 5. Order that the reasonable remuneration of the Receiver and his staff is to be paid out of the net proceeds referred to in order 4 above, provided that the Receiver is not to draw any amount in respect of the Receiver's remuneration, and is not to pay any amount in respect of remuneration claimed by Joshua Philip Taylor as liquidator of Mulcox Pty Limited (in liquidation) ACN 121 370 456 (the Company), out of the net proceeds referred to in order 4 above without further order of the Court. 6. Order that the Receiver is not to distribute any surplus funds or assets of the Mulet Family Trust without further order of the Court. 7. Order that the Amended Originating Process filed on 2 November 2023 is otherwise dismissed. 8. Order that the Liquidator's costs of the application made by Originating Process filed on 6 October 2023, of the Amended Originating Process filed on 2 November 2023, be costs in the winding up of the Company.

Endnotes

1. That is the substance of the relief sought at the hearing on 2 November 2023, notwithstanding that the prayers for relief in the Amended Originating Process are expressed in wider terms.
2. Trustee Act 1925 (NSW), s 59(4); Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; (2019) 93 ALJR 807; (2019) 368 ALR 390; (2019) 17 ABC(NS) 1; [2019] HCA 20 (Carter Holt) at [29]-[33] (Kiefel CJ, Keane and Edelman JJ); [80], [83]-[85] (Bell, Gageler, and Nettle JJ); [128]-[142] (Gordon J); Re Independent Contractor Services (Aust) Pty Limited (in liq) (No 2) (2016) 305 FLR 222; (2016) 34 ACLC 16-004; (2016) 11 BFRA 355; [2016] NSWSC 106 at [24] (Brereton J); Re Stansfield DIY Wealth Pty Limited (in liq) (2014) 291 FLR 17; (2014) 103 ACSR 401; (2014) 32 ACLC 14-065; (2014) 9 BFRA 663; [2014] NSWSC 1484 (Stansfield) at [19] (Brereton J).
3. Stansfield at [10], and the authorities referred to.
4. Stansfield at [10].
5. Carter Holt at [92] (Bell, Gageler, and Nettle JJ); Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) (2018) 260 FCR 310; (2018) 354 ALR 436; (2018) 124 ACSR 568; (2018) 36 ACLC 18-017; (2018) 70 AILR 102-937; [2018] FCAFC 40 at [100]-[101] (Allsop CJ); In Re Suco Gold Pty Ltd (in liquidation) (1983) 33 SASR 99; (1983) 7 ACLR 873; (1983) 1 ACLC 895 at 7 ACLR 877 and 881-883 (King CJ); Re Indopal Pty Ltd (1987) 12 ACLR 54; (1987) 5 ACLC 278 at 12 ACLR 57 (McLelland J); Stansfield at [6]-[7].
6. Stansfield at [31]-[33].
7. In re IMF Global Australia Ltd (in liq) (No 2) [2012] NSWSC 1426 at [55] (Black J); In the matter of North Food Catering Pty Limited (2014) 32 ACLC 14-049; [2014] NSWSC 77 at [9] (Brereton J).
8. See [29] above.

Amendments 17 November 2023 - Corrected reference to sub-s 420(2) of the Corporations Act 2001 (Cth) in orders and on coversheet 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: 17 November 2023