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[2016] FCA 1093
Federal Court of Australia
2016-08-31
Foster J
Original judgment source is linked above.
SCHEDULE OF POWERS Power to do all things necessary or convenient to be done for or in connection with or incidental to the attainment of the objective noted below including: (a) Power to sell or convert into cash any property or asset of the Accserve Super Fund; (b) Power to open a bank account in the name of the Accserve Super Fund; (c) Powers to investigate the transactions made using funds derived from the Accserve Super Fund; and (d) Powers to demand the books and records of the Accserve Super Fund from any person. Objective The objective of the appointment of the receiver is to:
FOSTER J: 1 The first plaintiff (the liquidator) was appointed official liquidator of the second plaintiff (the company) on 14 June 2016. 2 The company was ordered to be wound up at the suit of the Chief Commissioner of State Revenue (NSW) in his capacity as the legal entity responsible for the State Debt Recovery Office of New South Wales (SDRO). The debt owed to the SDRO by the company was $31,184.73. 3 The sole director, secretary and shareholder of the company is Peter Kenneth McGregor. In the Australian Securities and Investments Commission search in respect of the company recently obtained by the liquidator, Mr McGregor's address is shown as Unit 1, 121 Henry Street, Merewether, NSW 2291. That address is also shown in that search as the current registered office of the company. 4 The liquidator has endeavoured to find Mr McGregor but has been unable to do so. He appears no longer to reside at the Merewether address as registered mail sent by the liquidator to that address has been returned unopened and other attempts to locate him at that address have been unsuccessful. 5 The company does not have an Australian business number. However, it appears that the company is the trustee of a self-managed superannuation fund styled "The Accserv Super Fund" (ASF) and that that super fund has an ABN. 6 The liquidator has been unable to secure possession of many records of the company. Nor has he obtained many records of the ASF. Nonetheless, it appears to be fairly clear from the information and records which the liquidator has obtained that the company is, in fact, the trustee of that fund. 7 The plaintiffs seek the appointment of a receiver and manager to the assets of the ASF, initially on a temporary basis. The liquidator believes that, were the company to resign as trustee of that fund, there would be no other person or entity willing and able to take its place, which is a state of affairs probably not permitted by the Superannuation Industry (Supervision) Act 1993 (Cth). 8 The natural contradictors to the grant of the relief sought by the plaintiffs in this proceeding are the beneficiaries of the ASF. Unfortunately, the liquidator does not know who those persons are. Nor does he have a copy of the relevant Trust Deed. 9 Information obtained by the liquidator from the Australian Taxation Office (ATO) indicates that the company, in its capacity as trustee of the ASF, has not lodged Income Tax Returns for approximately fifteen years and has not lodged any activity statements for approximately eight years. The ATO claims to be a creditor of the ASF in the amount of $6,862.61 and has lodged a Proof of Debt for that amount with the liquidator. 10 In addition, information obtained by the liquidator from the Newcastle Permanent Building Society (Newcastle Permanent) indicates that funds held by Newcastle Permanent for the second plaintiff in its capacity as trustee of the ASF appeared to have been accessed from time to time for the purposes of meeting personal expenses, probably of Mr McGregor. 11 The current balance of the Newcastle Permanent bank account is approximately $9,287.14. 12 The ASF's bank account with the Newcastle Permanent has now been frozen by the Society at the request of the liquidator. 13 The liquidator has made contact with a number of share registries and brokers in order to ascertain if any share portfolios are held on behalf of the company or on behalf of the ASF. With the exception of Bell Potter Securities Limited (BPSL), he received a negative response from all parties to whom he sent correspondence. In response to his inquiry, BPSL informed the liquidator that, as at 27 July 2016, BPSL held a portfolio of shares and units for "Kingston Property Holdings Pty Limited (Accserv Super Fund Account)" which had a value of $175,065.05 as at that date. The bank statements provided by Newcastle Permanent to the liquidator disclosed receipt of moneys from time to time from BPSL. 14 Other inquiries made by the liquidator reveal that the company is the registered owner of Lot 48 in Strata Plan 55357. After carrying out all reasonable and appropriate searches, this is the only real property which the liquidators discovered was owned by the company or the ASF. The only encumbrance on that property is a charge pursuant to s 74 of the Fines Act 1996 (NSW). This charge secures a liability to the SDRO on the part of the company in the amount of $32,680.00. It appears that the company owns that home unit property in its capacity as trustee of the ASF. 15 The street address of the home unit property to which I have referred at [14] above is Unit 28, 215 Darby Street, Cooks Hill, NSW 2300. Having ascertained that that is the street address of the relevant property, the liquidator sent further correspondence to that unit addressed to the occupant. No reply to that correspondence has been received. Further inquiries in respect of that property indicate that Mr McGregor is identified as the contact person as far as the strata managers of the building in which the property is located are concerned. The strata managers also informed the liquidator that strata levies have been paid up to July 2016. 16 Attempts to serve Mr McGregor at the Cooks Hill property with other materials have all been unsuccessful. 17 In an affidavit sworn by the plaintiffs' solicitor earlier today, the Court was informed that correspondence delivered to the Cooks Hill property early last week and other mail subsequently delivered to that address has not yet been retrieved. 18 In paragraphs 41 and 42 of his affidavit, the liquidator set out his reasons for seeking the appointment of a receiver and manager to the assets of the ASF. He said: 41. The Second Plaintiff has failed in its obligations as trustee to ensure taxation lodgements and to ensure that the Accserv Super Fund has been compliant with taxation legislation. 42. I request that I be appointed Receiver to Accserv Super Fund to investigate its affairs, determine is [sic] creditor claims, determine its compliance status as a superannuation fund, realise property required to discharge liabilities and determine and settle beneficiary accounts. In light of the significant period of time the Accserv Super Fund has not complied with taxation lodgements, I am concerned that there may not be sufficient records available to allow me to make determinations. In such circumstances, I intend to liaise with and come to satisfactory agreements with creditor and beneficiary claims and/or apply to the Court for a final determination. 19 The evidence demonstrates that, for some nineteen years or so, Mr McGregor has been in charge of the company and the affairs of both the company and the ASF. However, the evidence also demonstrates that Mr McGregor appears no longer to be managing the affairs of the company or those of the ASF. There is no evidence as to why this might be, although Counsel appearing for the plaintiffs today has informed me that the liquidator proposes to check with the Registrar of Births, Deaths and Marriages in New South Wales in order to see whether Mr McGregor has died. 20 Counsel appearing for the plaintiffs today have provided me with a Written Submission in support of the present application. At paragraphs 10 to 15 of that Submission, Counsel have helpfully and appropriately made submissions as to why I should make the orders sought. Those paragraphs are in the following terms: 10. This is the course [referring to the appointment of a receiver and manager] recently adopted by this Court in Kite v Mooney, in the matter of Mooney's Contractors Pty Ltd (in liq) [2016] FCA 886 (copy attached). 11. In that case the liquidator of the second plaintiff, which had been the trustee of the Mooney Family Trust ("the MF Trust") and had never traded in its own right [sic]. As a result of the appointment of the first plaintiff as administrator of the second plaintiff, the second plaintiff was disqualified from being the trustee of the MF Trust but continued to be bare trustee of the property of the MF Trust. The first plaintiff was subsequently appointed as liquidator of the second plaintiff. The first plaintiff wished to sell some items of plant and equipment which were property of the MF Trust and applied to the Court to be appointed receiver of the assets and undertaking of the MF Trust to ensure that it had the authority to exercise powers over the property of the MF Trust. The Court made the order sought by the liquidator. 12. The present case differs from Kite v Mooney in several respects. 13. First, the trust deed of the Accserv Super Fund cannot be found and so it is not possible for the first plaintiff to ascertain whether the second plaintiff has been disqualified under that deed from being the trustee of the Accserv Super Fund. 14. Second, as the Accserv Super Fund is, apparently, a superannuation fund, the obligations of the second plaintiff are governed not only by the terms of the trust but also by the Superannuation Industry (Supervision) Act 1993 (Cth) ("SIS Act"). Although the SIS Act itself provides that a company that is in liquidation is a "disqualified person" and accordingly is not permitted to be appointed as trustee of a superannuation fund, the Act does not say that a person who is a trustee and becomes a disqualified person ceases to be the trustee of the superannuation fund. Accordingly, to the best of the first plaintiff's knowledge, the Company is still the trustee of the Accserve Superfund, whereas in Kite v Mooney the first plaintiff was a bare trustee. Nevertheless, the same issue arises: that is, on the basis of the decision in Re Stansfield DIY Wealth Pty Ltd (2014) 291 FLR 17; [2014] NSWSC 1484, which was followed in Kite v Mooney, the first plaintiff, as liquidator of the trustee, does not have the necessary authority to deal with the assets that the second plaintiff holds as trustee. It is for that reason that the fist [sic] plaintiff applies to be appointed as receiver and manager of the assets of the Accserv Super Fund. 15. As the trustee of the Accserv Super Fund has ongoing statutory responsibilities, particularly in relation to quantifying and meeting the income tax obligations of the Accserv Super Fund, the first plaintiff considers that there would seem to be no utility in the Company resigning as trustee of the Accserv Superfund in circumstances where no other person is likely to take on those responsibilities. Accordingly, rather than causing the Company to resign as trustee, the first plaintiff has applied for a declaratory order under s 479(3) of the Corporations Act 2001 (Cth) that it is justified in not causing the second plaintiff to resign as trustee, and the first plaintiff and the second second [sic] plaintiff have applied under the SIS Act for immunity from certain sanctions that might otherwise apply to them as a consequence of the second plaintiff remaining as trustee of the Accserv Super Fund. 21 It seems to me that the plaintiffs are entitled to the orders which they seek today essentially for the reasons advanced by them in their Written Submissions. Those orders effect the appointment of the liquidator as receiver and manager of the assets of the ASF and address certain consequential matters. The remaining relief sought by the plaintiffs will be addressed on the next occasion that the matter is before the Court. 22 The plaintiffs have suggested that the Commissioner of Taxation be served with the Originating Process and other Court documents prior to the next listing. That is an appropriate course in all of the circumstances. If at all possible, there ought to be a contradictor before the Court when the balance of the plaintiffs' claims for relief are dealt with. 23 The plaintiffs should continue their efforts to try to find Mr McGregor or, at the very least, to try to find out what has happened to him. 24 Accordingly, I will make the orders in the Short Minutes of Order provided to me this morning. The matter will stand over to 14 October 2016 at 9.30 am at which time I will consider making further orders as sought in the Originating Process. I will also grant liberty to apply on short notice. I order that the plaintiffs file electronically the affidavit of their solicitor sworn yesterday as well as their Written Submissions as soon as practicable after today's hearing. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.