Re Jennings Earthworks Pty Ltd [2026] VSC 77 (2 March 2026)

1 Michael Slaven is the second plaintiff and liquidator (the Liquidator) of the first plaintiff (the Company). The Liquidator has deposed that, based on his investigations, it is evident that the Company acted solely as trustee of the Jennings Family Trust Fund ABN 386 584 760 34 (the Trust).

2 The Liquidator seeks orders conferring powers on the Company to deal with the Trust's assets and related consequential orders. At the hearing I determined, for the reasons which follow, to make orders substantially in the terms sought by the plaintiffs. The orders made are annexed as Annexure A.

(a) an affidavit of Michael Slaven dated 30 January 2026;

(b) an affidavit of William Muir dated 23 February 2026;

(c) an affidavit of Amy Weiner dated 24 February 2026; and

(d) a second affidavit of Amy Weiner dated 26 February 2026.

5 On 3 April 2018, the Company was incorporated. Since the date of incorporation, Mr Nathaniel Charles Jennings has been a director and secretary of the Company. Mr Jennings is currently the sole shareholder of the Company.

6 By deed dated 9 April 2018, that is six days later, the Trust was established. The Company was appointed as the trustee of the Trust (the Trust Deed). The Trust Deed was subsequently amended in 2020. The evidence disclosed that Mr Jennings is presently the sole beneficiary of the Trust.

7 The Trust leased plant, equipment and machinery to a related party, Jennings Civil Group Pty Ltd (in liquidation). Mr Jennings is the sole director, secretary and shareholder of Jennings Civil Group Pty Ltd.

8 The Company did not have any employees. I was informed by counsel for the plaintiffs that this was due to the limited asset holding and leasing nature of the business operated by the Company.

9 On 16 January 2026, it was resolved that the Company be wound up and that the Liquidator be appointed as liquidator of the Company.

10 Pursuant to clause 4.4(f) of the Trust Deed, the office of trustee was ipso facto determined and vacated upon the appointment of the Liquidator. The consequence is that the Company held the Trust property solely as bare trustee.[1]

11 On 23 January 2026, the Liquidator received a Report on Company Activities and Property from Mr Jennings (the ROCAP).

12 The Liquidator has already taken steps to secure the assets of the Trust. For example, the Liquidator has engaged Pickles Auctions Pty Ltd (Pickles) to relocate all plant and equipment to secure sites and to catalogue and photograph the plant and equipment. The Liquidator submits that this has been necessary due to the nature of the assets and the ease with which they may be moved. The Liquidator has also obtained a marketing proposal from Pickles for the sale of the plant and equipment.

13 The unchallenged evidence of the Liquidator is that, at all material times, the Company acted in its capacity as trustee of the Trust and the Company has not traded in its own capacity. The Liquidator has sworn that in the circumstances, the Company has no assets in its own right and all of its liabilities have been incurred by it in its capacity as trustee of the Trust.

14 Whether or not the Company traded in its own capacity, or in its capacity as trustee of the Trust, is a question of fact. For the purpose of making that determination, it is well settled that regard ought to be had to the following non-exhaustive list of factors identified by Justice Robson in Re Amarind Pty Ltd (receivers and managers appt in liq):[2]

(a) the existence of constituent trust documents which establish a trust, including any draft trust documents which cross-reference one another;

(b) whether accounts were maintained separately to the company's operational expenditure accounts and/or the company's own property;

(c) whether the company's name in its capacity as trustee was noted on key employment documents, such as letters of employment and tax file declarations;

(d) whether invoices rendered by the company in question were issued by the company in its capacity as trustee of the trust;

(e) whether company meeting minutes disclosed the existence of a trust, or disclosed that the company was operating as a trust;

(f) whether expenses were accounted as receipts of the company as trustee; and

(g) whether records, contained in the general ledger of the company, recorded activity consistent with the operation of a trust, such as the issue of units.

15 The Liquidator has identified the following features in support of his contention that the Company always (and only) acted in its capacity as trustee of the Trust:

(a) the Company was incorporated shortly prior to the Trust Deed being executed;

(b) the Trust Deed, and the amendments to the Trust Deed, refer to the Company as trustee of the Trust and the Company carrying on the business of the Trust;

(c) the Company did not prepare accounts in its own capacity rather, all accounts available to the Liquidator were prepared in the name of the Trust;

(d) the financial statements available to the Liquidator, being the financial statements of the Trust for the year ended 30 June 2024 and 30 June 2025 identifies the company as the trustee of the Trust;[3]

(e) the notice of meeting of members, minutes of meeting and the Liquidator appointment documents all refer to the Company in its capacity as trustee of the Trust;

(f) the income tax returns of the Trust for the financial years ended 30 June 2024 and 30 June 2025 identify the Company as the trustee of the Trust;

(g) invoices rendered by the Company were issued in its capacity as trustee of the Trust;[4]

(h) chattel mortgage agreements refer to the Company in its capacity as trustee of the Trust;

(i) the Company entered into a lease agreement in its capacity as trustee of the Trust;

(j) the Trust general ledger is consistent with the Company acting as trustee of the Trust;[5]

(k) Mr Jennings, the sole director of the Company, stated in his ROCAP that the Company is the trustee of the Trust; and,

(l) the proof of debt lodged by the Australian Taxation Office refers to the Company trading in its capacity as the trustee of the Trust.

16 I accept the Liquidator's submission that the above matters are consistent with his investigations and provide an objective factual basis for concluding that the Company acted in its capacity as trustee of the Trust and has not traded in its own capacity.

17 As I referred to in Re Rygel International Pty Ltd,[6] it is by now well-established that:[7]

(a) a corporate trustee, such as the Company, retains a right of indemnity over trust assets, relating to liabilities incurred by reason of acting as trustee;

(b) this right of exoneration generates a supporting lien or charge, being a beneficial proprietary interest in the trust assets in favour of the former trustee of the trust;

(c) the former trustee holds title to the trust assets as bare trustee with limited powers to deal with those assets, but the ability to retain possession (as against beneficiaries) for the purpose of achieving its right of indemnity;

(d) where the former trustee is a bare trustee, the liquidator may not sell trust assets without an order of the Court, or the appointment of a receiver and manager over the trust assets; and

(e) 'courts are generally willing, upon an appropriate application, to make orders permitting the liquidator of a (former) corporate trustee to sell trust assets'.[8]

18 Where, upon the appointment of a liquidator, a company becomes a bare trustee, it is incumbent on the liquidator to obtain a court order to sell the asset or an order for the appointment of a receiver if a sale of an asset becomes necessary.[9] It is now well recognised that '[t]here is no bright line about whether the preferable course is to confer power under the Trustee Act or to appoint a receiver under the Supreme Court Act'.[10] The appointment of a receiver has been described as 'the more common course'.[11] The 'general ground on which the court appoints a receiver is, ultimately, in every case the protection or preservation of property for the benefit of persons who have an interest in it'.[12]

19 The application by the Liquidator is not opposed. Mr Jennings has indicated that he has 'no objections' to the orders sought. I recognise that the making of an order appointing the Liquidator as a receiver and manager has significance for creditors of the Company and the Trust and for Mr Jennings as the sole director and shareholder of the Company and sole beneficiary of the Trust.

20 In determining that it is appropriate to appoint the Liquidator as receiver and manager of the Trust pursuant to s 37 of the Supreme Court Act 1986 (Vic), I have taken into account the considered review of authority by Delany J in Re Waratah Group Pty Ltd (in liq) (Re Waratah).[13] Again recognising that there is 'no bright line'[14] between the two forms of relief, I consider that an appointment as receiver and manager is warranted the following reasons:[15]

(a) first, the appointment addresses any difficulty which may arise if a replacement trustee were to be appointed to the Trust;

(b) second, the appointment of a new trustee, if it occurred, would place the Liquidator in the position that he would be unable to retain Trust property against the new trustee in order to enforce his right to be indemnified. The prevailing authority in this Court is that a former trustee does not have the right to retain possession of trust assets as against a new trustee in order to secure his right of indemnity;[16]

(c) third, if no appointment as receivers and managers is made and a new trustee is appointed, the trust property will not have been preserved for the benefit of the Liquidator and Trust creditors; and

(d) fourth, these orders are just and convenient because they will facilitate the minimisation of future costs and disputes.

21 It is also appropriate that the Liquidator be granted, in respect of the business and assets of the Trust, the powers that the receiver has in respect of the business and property of a company under s 420 of the Corporations Act 2001 (Cth) (the Act). However, those powers should not include the powers conferred under s 420(2)(o), (s), (t), (u) and (w) of the Act as they are otiose on the facts of this application. The powers conferred do not exceed beyond those originally conferred on the Company pursuant to the Trust Deed.

22 Turning then to whether the appointment should be made nunc pro tunc, I note that no application was made for a relieving order under s 1318 of the Act. That was properly so as there is no evidence before me to suggest that the preconditions for the exercise of such a power presently exist.[17] The appointment of the Liquidator as receiver can however be made nunc pro tunc.[18] I have determined that this is an appropriate course given that the Liquidator has already taken steps to secure the assets of the Trust. For example, the Liquidator has engaged Pickles to relocate all plant and equipment to secure sites and to catalogued and photographed the plant and equipment. This has been necessary due to the nature of the assets and the ease with which they may be moved. The Liquidator has also obtained a marketing proposal from Pickles for the sale of the plant and equipment. Noting that the Liquidator has acted in good faith, I consider that if any steps were taken without power, uncertainty in the conduct of the liquidation would arise with attendant cost.

1. The costs, expenses and renumeration incurred by Mr Slaven as liquidator of the first plaintiff and as Receiver, including the costs of this application, be paid in priority from the property of the Trust (including any proceeds from the recovery of any money owed to the Trust).
2. Mr Slaven's costs of this application be costs and expenses to be paid from the assets of the Trust.

24 Proposed order 4 is unnecessary and duplicated by the terms of proposed order 3.

25 In Re Mandeville Group Pty Ltd (In Liq),[19] Sloss J stated:[20]

When addressing the liquidator's claim for remuneration and recovery of costs and expenses, counsel for the plaintiffs referred the Court to the decisions of Brereton J in Re Stansfield and of Riordan J in Re Matthew Forbes Pty Ltd (in liq), and the later observations made by Gordon J in Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth as confirming that a liquidator's entitlement to recover remuneration, costs and expenses in cases of this kind are regulated by the priority regime established by s 556(1) of the Corporations Act. Counsel submitted that orders for the liquidator's costs and remuneration are now routinely made pursuant to s 556(1) even though the relevant property is trust property.

In the circumstances, I am satisfied that it is appropriate to order that the liquidator is entitled to be paid his remuneration, costs and expenses properly incurred in preserving, realising or getting in the assets of the Trust, including the Property, and of and incidental to this application (including the costs of the contradictor), and that such remuneration, costs and expenses are to be paid in accordance with the priority specified in s 556(1) of the Corporations Act.

26 The sole function of the Company was as trustee of the Trust. It follows that the costs of the receivership and of the liquidation are and will be costs and expenses incurred in the course of the Liquidator discharging the Company's duties as trustee. It is therefore appropriate to order that the costs, expenses and remuneration, whether they be incurred by Mr Slaven in his capacity as liquidator or receiver, be payable from Trust property with such costs to be paid in accordance with the statutory priorities contained in s 556 of the Act.[21]

IN THE MATTER OF JENNINGS EARTHWORKS PTY LTD (ACN 625 360 223)

MICHAEL SLAVEN IN HIS CAPACITY AS LIQUIDATOR OF JENNINGS EARTHWORKS PTY LTD (ACN 625 360 223)

​​On return of the plaintiffs' originating process filed 30 January 2026

1. Michael Slaven (Mr Slaven) be appointed without security as receiver and manager (Receiver), nunc pro tunc, of the business and assets and any other property of the Jennings Family Trust Fund (Trust).
2. The requirements of rule 39.04 of the Rules be dispensed with.

1. The Receiver have, in respect of the business and 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) (Corporations Act) (other than s 420(2) (o), (s), (t), (u) and (w) of the Corporations Act) as if the reference in that section to "the corporation" were reference to the Trust including, without limitation, the power to do all things necessary or convenient to:

(a) call upon and recover any moneys lent or advanced by the Trust to a beneficiary of the Trust;

(b) pay the creditors of the Trust from the proceeds of the assets, pursuant to the priorities prescribed under the provisions of the Corporations Act;

(c) compromise any claims in its capacity as trustee of the Trust or against any of the Trust property on any terms the Receiver sees fit;

(d) bring any claim against any party on behalf of the Trust; and

(e) execute any documents relating to the Trust.

1. The costs, expenses and remuneration incurred by Mr Slaven as liquidator of the first plaintiff and as Receiver, including the costs of this application, be paid in priority from the property of the Trust (including any proceeds from the recovery of any money owed to the Trust) and that such costs, expenses and remuneration are to be paid in accordance with the priority specified in s 556(1) of the Corporations Act.
2. Liberty to apply to any person who can demonstrate sufficient interest to modify this Order on not less than 72 hours' notice to the plaintiffs.
3. As soon as reasonably possible, the plaintiffs serve a copy of this Order on the following:

(a) Nathaniel Charles Jennings; and

(b) The Australian Securities and Investments Commission.

[1] CGU Insurance Ltd v One Tel Ltd (in liq) [2010] HCA 26; (2010) 242 CLR 174, 182 [32] (French CJ, Heydon, Crennan, Kiefel and Bell JJ).

[2] [2017] VSC 127; (2017) 320 FLR 118, 128 [46]. Citations omitted.

[3] I was informed by counsel for the plaintiffs that no earlier financial statements were available to the Liquidator.

[4] See, for example, Re Rolcross Pty Ltd (in liq) [2012] NSWSC 846, [6] (Black J).

[5] See, for example, Graf Holdings & Parer Holdings [1999] NSWSC 217, [4] (Austin J).

[6] [2025] VSC 741, [28]-[30].

[7] In the matter of Winex Property Pty Ltd (in liq) [2025] VSC 167, [29], [31] (Matthews J).

[8] Re Cremin, in the matter of Brimson Pty Ltd (in liq) [2019] FCA 1023; (2019) 136 ACSR 649, 656 [50] (Moshinsky J) ('Brimson').

[9] Mutton (Liquidator), in the matter of Balsub Pty Ltd (In Liquidation) [2020] FCA 741; (2020) 145 ACSR 342, 349 [29] (Anastassiou J) citing Jones (in his capacity as liquidator of Killarnee Civil & Concrete Contractors Pty Ltd (in liq)) v Matrix Partners Pty Ltd [2018] FCAFC 40; (2018) 260 FCR 310, 323 [44] (Allsop CJ) and Re Mohen (in their capacity as joint and several liquidators of Willco Breads Pty Ltd (in liq)) [2019] FCA 1539, [19] (Banks-Smith J).

[10] Re Urban Property Pty Ltd [2021] VSC 847, [34] (M Osborne J).

[11] Brimson 656 [50] (Moshinsky J).

[12] Yunghanns v Candoora No 19 Pty Ltd [2000] VSC 300; (2000) 35 ACSR 34, 47 [65] (Warren J).

[13] [2020] VSC 523 [35]-[48] ('Re Waratah').

[16] Pitard Consortium Pty Ltd atf the Pitard Trust v Les Denny Pty Ltd [2019] VSC 614; (2019) 58 VR 524, 534 [38] (McDonald J) applying Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344; (2008) 74 NSWLR 550, 561 [50] (Brereton J).

[17] See Re Civil Construction Network Services Pty Ltd (in liq) [2020] VSC 474, [33]-[35].

[19] [2020] VSC 293.

[21] See, for example, Re Pires Consulting Holding Pty Ltd (In Liquidation) [2019] VSC 384, [53]-[54].