Caterpillar Financial Australia Limited v Ovens Nominees Pty Ltd

IN THE INTERLOCUTORY APPLICATION: ANTHONY ELKERTON IN HIS CAPACITY AS LIQUIDATOR OF CGB PROPERTY HOLDINGS PTY LTD (IN LIQUIDATION) ACN 152 406 730 First Applicant

CGB PROPERTY HOLDINGS PTY LTD (IN LIQUIDATION) ACN 152 406 730 Second Applicant

order made by: FARRELL J DATE OF ORDER: 9 October 2020

1. The name of the defendant be amended to CGB Property Holdings Pty Ltd (in liquidation) ACN 152 406 730.
2. Pursuant to s 57 of the Federal Court of Australia Act 1976 (Cth), Anthony Elkerton, a registered liquidator, is appointed as receiver and manager (Receiver), without security, over the property, assets and undertaking of the CGB Property Trust (Trust).
3. The need for the Receiver to file a guarantee under rr 14.21 and 14.22 of the Federal Court Rules 2011 (Cth) is dispensed with.
4. The Receiver have, in respect of the assets of the Trust, the powers that a receiver has in respect of the business and property of a company under s 420 of the Corporations Act (other than subsections (s), (t), (u) and (w)) as if the reference in that section to "the corporation" were a reference to the Trust, including, without limitation, the power to do all things necessary and convenient to effect the sale of the assets of the Trust for the purpose of discharging liabilities incurred by CGB Property Holdings Pty Ltd (in Liquidation) (Company) in its capacity as trustee of the Trust.
5. Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (being Sch 2 to the Corporations Act), the proceeds of any sale or realisation of the Trust's assets be dealt with as assets in the winding up of the Company and accounted for by the Company's liquidator from time to time accordingly, save that any surplus payable in the winding up is to be distributed to the Unit Holders of the Trust pari passu in accordance with their unit holding.
6. Reasonable costs, expenses and remuneration incurred by the Receiver be costs in the winding up.
7. The costs of this application be costs in the winding up of the Company.
8. The Receiver be remunerated for work as receiver at the rates annexed to Anthony Elkerton's affidavit sworn on 7 September 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The first applicant is Anthony Elkerton (Mr Elkerton) in his capacity as liquidator of the second applicant, CGB Property Holdings Pty Ltd (in liq) (the Company) (the Liquidator). The Company was wound up in insolvency and Mr Elkerton was appointed as its liquidator by order of this Court made on 15 July 2020.

Orders sought 2 On 8 September 2020, the applicants filed an interlocutory process seeking the following orders: (a) An order under s 57 of the Federal Court of Australia Act 1976 (Cth) appointing the Liquidator as receiver and manager, without security, over the property, assets and undertakings of the CGB Property Trust (Trust) and an order that the need for Mr Elkerton in his capacity as receiver of the Trust (Receiver) to file a guarantee under rr 14.21 and 14.22 of the Federal Court Rules 2011 (Cth) be dispensed with. (b) An order that the Receiver have, in respect of the assets of the Trust, the powers that a receiver has in respect of the business and property of a company under s 420 of the Corporations Act 2001 (Cth) (other than subsections (s), (t), (u) and (w)) as if the reference in that section to "the corporation" were a reference to the Trust, including, without limitation, the power to do all things necessary and convenient to effect the sale of the assets of the Trust for the purpose of discharging liabilities incurred by the Company in its capacity as trustee of the Trust. (c) An order under s 90-15(1) of the Insolvency Practice Schedule (Corporations) (being Sch 2 to the Corporations Act) that the proceeds of any sale of the Trust's assets be dealt with by the Liquidator as assets in the winding up of the Company and accounted for accordingly. (d) Orders that the costs, expenses and remuneration incurred by the Receiver and the costs of this application be costs in the winding up of the Company. (e) In the alternative to the orders proposed in (c) and (d) above: (i) An order that the reasonable costs, expenses and remuneration incurred by the Receiver, including the reasonable costs of and incidental to this application, be paid in priority from the Trust; and (ii) An order that the Receiver be permitted to draw from the assets of the Trust amounts on account of his reasonable costs and expenses, including but not limited to reasonable legal costs but excluding any amount by way of remuneration which has not been first approved by the Court. (f) An order that the Receiver be remunerated for his work as receiver at the rates annexed to his affidavit in support of the interlocutory process.

Evidence 3 The applicants relied on three affidavits. The first is the affidavit sworn by Mr Elkerton on 7 September 2020 (supporting affidavit). The factual matters set out in these reasons are derived primarily from the supporting affidavit and submissions dated 1 October 2020 filed on behalf of the applicants. 4 The second is an affidavit of service sworn by Brendan James Moore, a process server, on 24 September 2020. Mr Moore deposes to service of the interlocutory process and the supporting affidavit of John Phillip Burgess (Mr Burgess) at his usual place of residence on 22 September 2020. 5 The third affidavit was sworn by Annita Stucken on 1 October 2020. Ms Stucken is a graduate employed by the applicants' solicitors, Hegarty Legal. She deposes to service of the interlocutory process and the supporting affidavit on: (a) Darryl Peter Chadwick (Mr Chadwick) as trustee of the Chadwick Family Trust on 10 September 2020 and Tracy William Boxsell (Mr Boxsell) as trustee of the Boxsell Family Trust. Service was affected by email on 11 September 2020 sent to Ben Sewell of Sewell & Kettle who had been instructed to receive service; (b) The National Australia Bank Limited (NAB). Service was affected by post to the address for service of legal notices set out on NAB's webpage and Australia Post's website indicates that delivery was effected on 14 September 2020 at 7.09 am; (c) The Australian Securities and Investments Commission (ASIC). Service was affected at an address identified from ASIC's website for service of legal processes and Australia Post's website indicates that delivery was effected on 14 September 2020 at 6.56 am; and (d) The Nosrednug Superannuation Fund Pty Ltd (NSF Pty Ltd) as trustee of the Nosrednug Family Superannuation Fund (NFS Fund) on 17 September 2020. Ms Stucken personally delivered the interlocutory process and supporting affidavit to that company's registered address identified from a search of ASIC's records. On 24 September 2020 Hegarty Legal received a letter from Chris Wilkinson of Brown Wright Stein Lawyers who confirmed that that firm acts for Kenneth Gunderson-Briggs (Mr Gunderson-Briggs) and NSF Pty Ltd as trustee of the NFS Fund. The letter indicated that NSF Pty Ltd and Mr Gunderson-Briggs consented to the orders sought by the applicants being made and that they do not intend to appear at the hearing of the interlocutory process. 6 The Court is satisfied that creditors and those with an interest as directors or unit holders of the Trust were provided with notice of the hearing but none sought to appear at the hearing.

Background 7 The Company was incorporated on 1 August 2011. An ASIC search dated 24 August 2020 indicates that Messrs Boxsell, Chadwick, Burgess and Gunderson-Briggs (together the directors) have been directors of the Company since its incorporation. John Chee Yeong Wong (Mr Wong) was a director of the Company upon its incorporation but he ceased to be a director on 8 August 2016. 8 During the course of the Company's liquidation, the Liquidator received books and records, primarily received from Mr Gunderson-Briggs either in his capacity as a director of the Company or as a partner in Gunderson Briggs Chartered Accountants, the accountants to the Company until at least 2018.

The Trust and the Trust Deed 9 Among the Company's books and records is a copy of a deed establishing the Trust (Trust Deed). 10 The first schedule to the Trust Deed contains provision for the date of the deed to be inserted, but it has not been completed. The Liquidator infers from documentation relating to NAB's loan to the Company that the Trust was established some time between the Company's incorporation and around January 2012. That view appears to be supported by the footer in the Trust Deed which contained a copyright notice "© Brown Wright Stein - 2011" and a stamp duty endorsement on the first schedule which would indicate that it had been stamped in February 2012. 11 The first schedule also identifies: (a) The Company as Trustee of the Trust. (b) The initial unit holders as being Mr Chadwick as trustee of the Chadwick Family Trust, Mr Boxsell in his capacity as trustee of the Boxsell Family Trust, Mr Burgess and Jennifer Burgess as trustee of the New Burgess Superannuation Fund, NSF Pty Ltd as trustee of the NFS Fund and Wong Family Superannuation Fund Pty Ltd as trustee of the Wong Family Superannuation Fund in respect of 10 redeemable units each; and (c) The "Appointor" as being Messrs Chadwick, Boxsell, Wong, Gunderson-Briggs and Burgess jointly. 12 From his review of the Trust Deed, the Liquidator notes that: (a) Clause 27 provides for the Trustee to be indemnified out of the assets of the Trust Fund against liabilities incurred in the execution or attempted execution or as a consequence of the failure to exercise any of the "trusts authorities powers and discretions conferred" on the Trustee by the Trust Deed or by virtue of being the Trustee. (b) Clause 31 provides that the "office of a Trustee shall be ipso facto determined and vacated … if such Trustee being a corporation shall enter into liquidation whether compulsory or voluntary …". (c) Clause 32 relates to the appointment and removal of the Trustee by the Appointer or as follows: (1) The Appointor for the time being or in the event of there being no Appointor the legal personal representatives of the last surviving Appointor who was an individual and who died whilst he was Appointor and if there be different legal personal representatives in respect of different parts of his estate then the legal personal representatives nominated for the purpose in any will of such survivor and in default of such nomination the legal personal representatives who obtained first in point of time probate or other the legal right to administer any part of the estate of the survivor shall be entitled by oral declaration or notice in writing or deed or in such other manner from time to time as the Appointor in the discretion of the Appointor may determine at any time and from time to time: (a) to remove any Trustee hereof; (b) to appoint any additional Trustee or Trustees; (c) to appoint a new Trustee or Trustees in the place of any Trustee who is removed who resigns his Trusteeship or ceases to be a Trustee by operation of law; PROVIDED THAT if there is no Appointor named in the schedule or if at any time there is no one entitled to exercise the power of the Appointor hereinbefore conferred the statutory and other rights of removing and appointing Trustees hereof may be exercised by the Trustees or by the legal personal representatives or (if the Trustee be a corporation) the liquidator of the last surviving Trustee; 13 The Liquidator concludes that, as a result of the Court's order made on 15 July 2020, the Trustee's office was vacated such that the Company is now a bare trustee of the Trust's assets and it does not have the power to sell the assets of the Trust.

Assets and liabilities 14 The Liquidator has received financial reports for the Trust in respect of the financial years ending on 30 June in 2015 to 2018 (Reports). The Reports record that: (a) The largest asset held by the Trust is the "Kandos Property", being lots 5, 6, 7 and 8 in deposited plan 35972; (b) The Trust generated rental income of $10,920 in 2015 and 2016, $12,341 in 2017 and $21,840 in 2018; (c) The Trust recorded accumulated losses of $54 in 2015, $5,118 in 2016, $5,258 in 2017 and no profit or loss in 2018; and (d) As at 30 June 2018, the Trust had: (i) Assets comprising cash and cash equivalents of $9,187, property plant and equipment (consisting of the Kandos Property) of $214,023 and a loan to CGB Operations Pty Ltd (CGB Operations) of $61,985. The Liquidator notes that the Report for the 2018 financial year records this as a negative liability of the Trust rather than an asset; and (ii) Liabilities comprising of trade and other payables (goods and services tax) of $273, borrowings from NAB of $136,500 and from CGB Services Pty Ltd (CGB Services) of $83,258 and unpaid beneficiary entitlements of $4,402. 15 The Liquidator received a report on company activities and property (ROCAP) from each of Mr Burgess and Mr Gunderson-Briggs dated 7 August 2020. The ROCAPs were in the same form save that Mr Gunderson-Briggs' ROCAP had a spreadsheet annexed to it. These ROCAPs identified no additional assets and the Liquidator is not aware of any other assets or liabilities than those identified in the 30 June 2018 Report. 16 The Trust's largest liability is to NAB pursuant to a Letter of Offer dated 19 January 2012. A copy of the Letter of Offer and a related statutory declaration made by Mr Wong and security documents dated 30 January 2012 were provided to the Liquidator by NAB. Relevantly, from the Liquidator's evidence given in the supporting affidavit at [29]-[32], the Court understands that NAB has the benefit of a fixed and floating charge executed by the Company and a mortgage over the Kandos Property executed on 30 January 2012 and a general security agreement between NAB and the Company as Trustee dated 11 March 2014. There are no security interests registered in favour of any other person. NAB also appears to have the benefit of a guarantee and indemnity dated 30 January 2020 provided by each of the Company's directors as at the time of its incorporation (that is, including Mr Wong). Bank statements provided to the Liquidator by NAB indicate that the Company owed NAB $1,948.25 in relation to the Trust's business account as at 1 July 2020, $1,451.61 in relation to the Trust's Business Everyday Account as at 30 June 2020 and $136,500 in relation to the Trust's market loan account as at 6 April 2020. 17 In relation to the amount of $83,258 owing to CGB Services (to which receivers and managers appear to have been appointed), the Liquidator notes that CGB Services is a related entity of the Company in that its directors are Mr Chadwick and Mr Boxsell. Further Mr Gunderson-Briggs' ROCAP identifies the loan from CGB Services as a liability, even though the ROCAP appears to have been prepared by reference to the 30 June 2018 Report. The Liquidator believes that this debt was incurred by the Company as trustee of the Trust. The Liquidator has not been provided with any supporting documents in relation to that debt. 18 The Liquidator obtained a valuation of the Kandos Property dated 7 August 2020 which attributes a market value range of $180,000-$220,000 on the basis that the land is sold unencumbered and with vacant possession. The Kandos Property is currently vacant. Mr Gunderson-Briggs advised the Liquidator that the Kandos Property was previously occupied by CGB Operations, a related entity, but it no longer occupies the land. 19 In relation to the debt owing by CGB Operations, the Liquidator notes that it is a related entity of the Company in that its directors are Messrs Boxsell, Chadwick and Gunderson-Briggs. The Liquidator sent a letter of demand for $61,985 to CGB Operations on 27 July 2020. 20 The Liquidator has concluded that an aggregate amount of $230,246.70 is owed to creditors as follows: (a) NAB is a secured creditor for $138,448.25; (b) CGB Services is a priority creditor for its petitioning creditor's costs of $8,540.45; and (c) CGB Services is an unsecured creditor for $83,258.

Appointment as Receiver of the Trust 21 The Liquidator's evidence is as follows: (a) Based on his review of the Company's books and records, including the Reports, ROCAPs and financial instruments entered into with NAB described above, he believes that the Company only traded in its capacity as Trustee of the Trust and that all of the Company's liabilities were incurred in its role as Trustee of the Trust. (b) He is not aware that the Company has any assets in its own right. (c) He is unable to realise the Trust's assets as he does not believe that he will be able to obtain any funds for distribution to the Company's creditors in the liquidation. If he is appointed as Receiver, it is his intention to sell the Kandos Property and apply the proceeds to the payment of the Company's creditors in accordance with the Company's right of indemnity from Trust assets. He believes that his appointment as Receiver is the most efficient way of realising the Trust's assets for the benefit of its creditors. (d) Based on evidence given by Mr Chadwick in the winding up proceedings, he understands that the dispute that led to the Company's liquidation was a dispute between Mr Chadwick and Mr Boxsell on one side and Mr Gunderson-Briggs on the other. He therefore does not believe that it is likely that the Appointors will reach agreement to jointly appoint any replacement person or entity as the Trustee of the Trust and he has not been made aware of any proposal for them to do so. 22 The Court accepts the Liquidator's evidence that the Company only acquired assets and incurred liabilities as Trustee of the Trust and that it is appropriate to make orders appointing him as receiver of the Trust's assets with the powers that a receiver has in respect of the business and property of a company under s 420 of the Corporations Act (other than subsections (s), (t), (u) and (w)) as if the reference in that section to "the corporation" were a reference to the Trust. This includes, without limitation, the power to do all things necessary and convenient to effect the sale of the assets of the Trust for the purpose of discharging liabilities incurred by the Company in its capacity as trustee of the Trust. 23 It is now settled that where a corporate trustee enters into liquidation, the company's right of indemnity or exoneration and accompanying equitable lien over trust assets survives. Where, as here, the company has been removed as trustee of the trust under the terms of the trust deed, the company retains the right to holds trust assets as bare trustee but the liquidator of the Company does not have the power to sell those assets to satisfy that indemnity absent intervention by the Court: see Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310 at [44], [85]-[91] (Allsop CJ), [139], [142] (Siopis J) and [198] (Farrell J); Caterpillar Financial Australia Limited v Ovens Nominees Pty Ltd [2011] FCA 677 at [22]-[28] (Gordon J). 24 Section 57(1) of the Federal Court of Australia Act allows the Court, at any stage of a proceeding on such terms and conditions as the Court thinks fit, to appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient to do so. 25 Absent any relevant conflict, it is commonly the case that the Court will appoint the corporate trustee's liquidator as receiver without security (see In the matter of Hercules Car Parking Systems (Victoria) Pty Ltd [2018] NSWSC 409 (Brereton J) (Hercules Car Parking Systems) and to dispense with the receiver's obligation to file a guarantee in compliance with rr 14.21 and 14.22 of the Federal Court Rules: see Amirbeaggi, in the matter of Simpkiss Pty Ltd (in liq) [2018] FCA 2121 (Markovic J). Appointing a liquidator or administrator of a corporate trustee as a receiver of a trust's assets facilitates and simplifies the external administration of the corporate trustee by providing for the trust's business and assets to be under the same control as the corporate trustee while it is in external administration, and that aids in the vindication of the trustee company's right of indemnity out of the trust's assets: see In the matter of Mecfab Holdings Pty Ltd [2015] NSWSC 46 at [9]. 26 Once the sale of the Trust's assets has been effected, the proceeds may be appropriated by way of exoneration as part of the conduct of the liquidation: see Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20 at [55]-[58] (Kiefel CJ, Keane and Edelman JJ), [95]-[97] (Bell, Gageler and Nettle JJ), [171] (Gordon J).

Orders relating to distribution of trust assets 27 The Liquidator sought an order under s 90-15(1) of the Insolvency Practice Schedule (Corporations) that the proceeds of sale of the Trust's assets be dealt with by the Liquidator as assets in the winding up of the Company and accounted for accordingly. Mr Elkerton notes that the orders referred to at [2(d)] above (dealing with the Receiver's remuneration, costs and expenses and the costs of this application) are ancillary to this order and that similar relief was recently granted in In the matter of Montpac Pty Ltd (in liquidation) and Global Network Link Pty Limited (in liquidation) [2020] NSWSC 1237 (Black J) (Montpac). 28 Section 90-15 relevantly provides as follows: 90-15 Court may make orders in relation to external administration Court may make orders (1) The Court may make such orders as it thinks fit in relation to the external administration of a company. Orders on own initiative or on application (2) The Court may exercise the power under subsection (1): (a) on its own initiative, during proceedings before the Court; or (b) on application under section 90-20. (3) Without limiting subsection (1), those orders may include any one or more of the following: (a) an order determining any question arising in the external administration of the company; … (d) an order in relation to the costs of an action (including court action) taken by the external administrator of the company or another person in relation to the external administration of the company; … (7) This section does not limit the Court's powers under any other provision of this Act, or under any other law. 29 Dealing first with the application for orders referred to at [2(c)] above, the Liquidator has provided evidence of the schedule of hourly rates applied by DW Advisory, the firm of which he is a partner. Those rates do not appear to be unusual for work of the kind to be undertaken by the Receiver. 30 The Court considers it appropriate to make orders that the Receiver be remunerated for his work as Receiver at those rates and that the reasonable costs, expenses and remuneration incurred by the Receiver and the costs of this application be costs in the winding up of the Company rather than the alternate orders referred to at [2(e)] above. In saying this, the Court relies on the reasoning in Cremin, in the matter of Brimson Pty Ltd (in liq) [2019] FCA 1023 at [51] (Moshinsky J) and the cases there cited as follows: 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: see Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20 (Carter Holt) at [40] per Kiefel CJ, Keane and Edelman JJ; at [92] per Bell, Gageler and Nettle JJ; at [106] per Gordon J. 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: Re Suco Gold Pty Ltd (in liq) (1983) 33 SASR 99 at 110 per King CJ; Jones v Matrix at [105]-[106]. 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: Jones & Matrix at [100]-[108] per Allsop CJ; see also Carter Holt at [93]-[96] per Bell, Gageler and Nettle JJ; at [111], [156]-[158] per Gordon J. 31 The assets and liabilities of the Company were acquired and incurred as part of its sole business as Trustee of the Trust. As submitted by Mr Elkerton, the orders referred to at [2(c)] above are appropriate with a view to limiting the further funds to be expended (given the limited asset pool available) and in order to give the Liquidator certainty as to how he can deal with the realisations from the sale of trust property. In those circumstances, the Court considered it appropriate that approval of the Receiver's remuneration and expenses be subject to a resolution of creditors rather than requiring a further application to the Court. 32 As to the proposed order that the proceeds of sale of the Trust's assets be dealt with by the Liquidator as assets in the winding up of the Company and accounted for accordingly, the Court notes that while in Montpac Black J did make such an order, his Honour also gave judicial advice which addressed the issue of how any surplus should be dealt with. That is, his Honour gave specific advice as to the order of payment of costs ending with any surplus being paid to beneficiaries of the relevant trusts, not shareholders. While the likelihood of a surplus arising in this case is small, the Court determined to make the proposed order with an amendment dealing with the disposition of any surplus. 33 The Court notes comments made by Brereton J in Hercules Car Parking Systems concerning the practice which his Honour has adopted of ordering that the receiver not distribute the proceeds of realisation of trust assets to creditors or beneficiaries without the further direction of the Court. Having regard to the limited assets of the Trust, the Court does not consider that such an order would be appropriate in this case. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell.