Re Kingicretevic Pty Ltd (in liq) [2026] VSC 96 (6 March 2026)

1. The Liquidator has filed and relies upon the following materials:

(a) affidavit of Matthew Kucianski affirmed 23 January 2026 (Liquidator's Affidavit);

(b) affidavit of Nicole Tedesco affirmed 23 February 2026;

(c) affidavits of Sam Merrylees affirmed 25 February 2026 and 26 February 2026; and

(d) submissions dated 26 February 2026.

1. The following have been drawn from the Liquidator's Affidavit and filed documents. These are my findings of fact.
2. On 9 June 2021, the Company was incorporated with Aaron Te Ora Kingi (Aaron Kingi) and Adrian Grant Kingi (Adrian Kingi) as its directors and shareholders.
3. The Company operated a commercial and civil concrete placing business throughout Melbourne.
4. While the Liquidator has been unable to locate an executed copy of the trust deed in respect of the Trust, he has been provided with an unexecuted copy of a document titled 'KingicreteVic Unit Trust (Fixed Trust Deed)' (Trust Deed) by the Company's former accountant. I am satisfied on the material, particularly those matters set out below at [25], that the Company acted as trustee of the Trust and that the terms of the Trust were those set out in the unexecuted Trust Deed.
5. The Trust Deed provides that:

(a) the Company is trustee of the Trust;

(b) the Trust is a unit trust with Aaron Kingi and Adrian Kingi as the 'Original Members' of the Trust;

(c) the 'Trustee' is entitled to be indemnified out of the 'Trust Fund' against all liabilities incurred by the 'Trustee' as trustee of the Trust; and

(d) the office of the trustee is vacated upon the appointment of a liquidator to the trustee - i.e. an ipso facto clause.

1. On 13 May 2025, the Liquidator was appointed as liquidator of the Company by way of a creditors' voluntary liquidation.
2. On 30 June 2025, the Liquidator drew $28,833.78 (including GST) from the Company bank account in remuneration.

1. Section 63 of the Trustee Act 1958 (Vic) (Trustee Act) provides:

(1) Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, expenditure or other transaction, it is in the opinion of the Court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument (if any) or by law, the Court may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose on such terms and subject to such provisions and conditions (if any) as the Court thinks fit and may direct in what manner any money authorised to be expended, and the costs of any transaction are to be paid or borne as between capital and income.

(2) The Court may from time to time rescind or vary any order made under this section, or may make any new or further order.

(3) An application to the court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.

1. Section 37 of the Supreme Court Act relevantly provides:

(1) The Court may by order, whether interlocutory or final, grant an injunction or appoint a receiver if it is just and convenient to do so.

(2) An order made under subsection (1) may be made either unconditionally or on such terms and conditions as the Court thinks just.

1. Rule 39.02(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) relevantly provides that the Court may appoint a receiver at any stage of a proceeding or prior to the commencement of a proceeding.
2. Section 90-20 of the IPSC permits a liquidator to apply for orders under the provision in relation to the external administration of a company.
3. Section 90-15 of the IPSC empowers the Court to make such orders as it thinks fit in relation to the external administration of a company.

1. The Trust Deed, together with Annexure A, provides:

(a) the Trust will be known as the 'KingicreteVic Unit Trust'; and

(b) the Trust is a unit trust, which lists the 'Original Members':

(i) Aaron Kingi as unitholder of 60 units; and

(ii) Adrian Kingi as unitholder of 40 units.

Except in relation to breach of trust knowingly or wilfully committed by the Trustee:

13.1.1 the Trustee is not personally responsible or liable in respect of the execution or purported or attempted execution of, or failure or neglect to exercise or carry out any of the Trustee's duties, authorities, powers or discretions;

13.1.2 the Trustee is entitled to be indemnified out of the Trust Fund against all liabilities incurred by the Trustee as trustee of the Trust; and

13.1.3 the Trustee is entitled to a lien on, and may use the Trust Fund for the indemnity and generally for the payment of all proper costs and expenses of performing the Trustee's duties under this Deed.

19.2.1 Subject to Member's Approval, the Members may remove the Trustee as a trustee of the Trust.

19.2.2 The Trustee will be automatically removed as trustee of the Trust if:

(a) being a company it goes into liquidation or a receiver is appointed in respect of any of its property; or

(c) it fails or neglects after reasonable notice from the Members to carry out or satisfy any duty imposed upon a Trustee by this Deed.

1. The following issues may arise where a corporate trustee of a trading trust has ceased to be trustee because of the appointment of a liquidator to it and has the need to realise trust assets in order to satisfy the company's right of indemnity:

(a) 'a trustee has as an incident of office an entitlement in equity to be indemnified out of the trust assets (by way of recoupment of past expenditure or exoneration from existing liability) for expenses and liabilities properly incurred by the trustee in the execution of the trust';[1]

(b) 'the trustee has a beneficial interest in the trust assets commensurate with that entitlement to indemnification which takes priority over the beneficial interests that the persons for whose benefit the trustee is bound to administer the trust assets (the cestuis que trust) have in the trust assets';[2]

(c) where the trust deed pursuant to which the corporate trustee is appointed contains an ipso facto clause, the office of the former trustee is vacated upon the appointment of a liquidator to the company;

(d) upon the vacation of the office of trustee, the former corporate trustee holds title to the trust assets as bare trustee with limited power to deal with them;[3]

(e) a former corporate trustee which holds trust assets may retain possession of them as against the beneficiaries for the purpose of satisfying its right of indemnity[4] but arguably not against a new trustee appointed to the trust;[5]

(f) a former corporate trustee's right of indemnity and equitable lien survive the company's removal as trustee of the trust;[6]

(g) a former corporate trustee's equitable lien or charge on trust assets to secure its right of indemnity takes priority over the interests of the beneficiaries of the trust;[7]

(h) '"the liquidator of an insolvent (former) corporate trustee cannot sell the trust's property without order of the Court, or by appointment of a receiver over the trust assets". The rationale for this position is that, on a proper understanding, the trust assets are not the "property of the company", but are instead trust property in which the corporate trustee has a proprietary interest by way of lien or charge to secure its right of exoneration. Thus, to the extent that the subject of a sale is the whole of a trust asset, rather than merely the company's lien or charge in respect of that asset, it is not authorised by the power of sale in s 477(2)(c) of the Corporations Act 2001 (Cth) (Corporations Act);'[8]

(i) two courses that are available to a liquidator of a former corporate trustee seeking to exercise a right of indemnity against the trust assets are: first, to seek orders under the Trustee Act permitting and facilitating the sale of trust assets; and second, to apply for the appointment of a receiver (usually, the liquidator) under the Supreme Court Act;[9]

(j) there is no 'bright line'[10] assisting in the choice between relief under the Trustee Act and appointment of a receiver under the Supreme Court Act, but the latter has the advantage of avoiding problems that might arise because of the appointment of a new trustee of the trust, such as the inability of a former trustee to retain the trust assets as against a new trustee;[11]

(k) where it is clear that the trust assets would need to be sold to meet the liabilities of the corporate trustee, courts have been willing to appoint a company's liquidator as its receiver without security, because the liquidator is subject to obligations and supervision under the Corporations Act;[12]

(l) orders may be made nunc pro tunc under both the Trustee Act,[13] and for the appointment of a liquidator as receiver under the Supreme Court Act,[14] to authorise a sale of trust assets that has already occurred;

(m) 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 which 'includes the costs of the liquidation (including the liquidator's remuneration)';[15] and

(n) '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', and proceeds 'are to be distributed to the trust creditors in accordance with the order of priority prescribed by the Corporations Act'.[16]

What is the financial position of the Company and the Trust

1. At the time of the Liquidator's appointment, the Company held $140,876.67 of available cash in the bank.
2. The Liquidator has identified potential assets of the Trust as follows:

(a) related party loans totalling $46,000; and

(b) debtors totalling $136,000.

1. At the time of the Liquidator's Affidavit, the known liabilities of the Company totalled $1,090,882.16, which includes:

(a) $826,555 owing to the Australian Taxation Office (ATO); and

(b) $104,236 owing to the State Revenue Office.

1. It can be seen that the known Trust liabilities exceed the cash at bank and other known assets of the Trust by a significant margin.

Did company trade in its own right or as trustee of trust

1. In Re Amerind Pty Ltd (receivers and managers apptd) (in liq),[17] Robson J set out non‑determinative factors or criteria relevant to determining whether a company has traded in its capacity as trustee of a trust:[18]

(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.

1. I am satisfied on the evidence that the Company only traded as trustee of the Trust having regard to the following evidence:

(a) the existence of the unexecuted Trust Deed;

(b) the registration of the Trust for the purposes of GST;

(c) the registration of an ABN for the Trust;

(d) invoices issued between 30 May 2023 to 3 November 2024 containing references to the Trust ABN;

(e) available financial accounts of the Company prepared in its capacity as trustee of the Trust;

(f) documentation from the ATO indicating that the Company acted in its capacity as trustee of the Trust;

(g) the Company's former accountant advised the Liquidator that her firm was not aware of the Company conducting business other than in its capacity as trustee of the Trust; and

(h) the absence of other information that points to trading by the Company or ownership of assets other than the indemnity in its own right.

Whether 'just and convenient' to appoint the liquidator as receiver

1. It is 'just and convenient' to appoint the Liquidator as receiver and manager of the Trust:

(a) first, the Company 'has a right of indemnity to resort to the trust assets to vindicate its right to be exonerated from liabilities that it incurred in the course of carrying out trust business';

(b) second, the Company has an express right to use the Trust assets for the purpose of satisfying its right of indemnity and generally for the payment of all proper costs and expenses of performing the Trustee's duties under the Trust Deed;[19]

(c) third, the Company was removed from office by the ipso facto clause in the Trust Deed with consequence that it holds the Trust assets as bare trustee with limited powers to deal with those assets;

(d) fourth, the Trust has been improperly managed, evidenced by the fact that the Company in its capacity as trustee has incurred liabilities that exceed the Trust assets available to meet those liabilities as and when they fall due;

(e) fifth, the Company's right of indemnity would appear to exceed the Trust assets that are available to satisfy it;

(f) sixth, appointment of the Liquidator as receiver and manager enables the receiver to perform the tasks required in order to wind up the Trust, including recovery of debts and realisation of assets for the benefit of Trust creditors;[20] and

(g) seventh, the orders are likely to facilitate the minimisation of future costs and disputes.[21]

1. I am satisfied that orders appointing the Liquidator as receiver and manager should be made nunc pro tunc on the basis that work was done by the Liquidator prior to 30 June 2025, and at a time prior to the receipt by him of a copy of the unexecuted Trust Deed which contained the ipso facto clause.
2. I am satisfied that the Liquidator should be appointed as receiver and manager without security for the reasons given by Besanko J in Sapphire cited above.
3. The Liquidator seeks that ancillary orders be made under the IPSC in terms set out in orders 5 to 10 of the plaintiffs' proposed orders. Those orders substantially replicate orders made by Gardiner AsJ on 27 November 2025 in Re Kucianski (in his capacity as liquidator of Bravada Pty Ltd (in liquidation).[22] I am satisfied that it is appropriate for those orders to be made, in particular:

(a) orders 5 to 7, which provide for payment of the Liquidator/receiver's remuneration and expenses, including for work done in winding up the Trust;

(b) order 8, which provides for the discharge and release of the receiver on the conclusion of the liquidation of the Company;

(c) order 9, which provides that the Liquidator/receiver is justified and therefore acting reasonably in treating all of the assets as Trust assets and all of the liabilities as Trust liabilities, which is consistent with my earlier findings; and

(d) order 10, which provides with respect to the distribution of the Trust Property for the payment of the Liquidator/receiver's remuneration and expenses, both those incurred and those to be incurred, with the balance to be distributed in accordance with the priorities under the Corporations Act. This accords with the principles set out above.[23]

1. I will add one further order to the draft orders proposed by the plaintiffs that the plaintiffs serve a copy of these orders on all known unitholders of the Trust and all known creditors of the Trust and the Company by their last known email address, alternatively last known address, as soon as is practicable.

1. In the premises, I am satisfied that it is just and convenient to appoint the Liquidator nunc pro tunc as receiver and manager over the Trust Property without security. I am satisfied that the ancillary orders sought by the Liquidator ought to be made in the terms of the proposed orders submitted to the Court.

[1] Naaman v Jaken Properties Australia Pty Ltd (2025) 281 CLR 635, 641 (Gageler CJ, Gleeson, Jagot, and Beech‑Jones JJ) (Naaman).

[3] Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360, 369-370 (Stephen, Mason, Aickin and Wilson JJ); CGU Insurance Ltd v One.Tel Ltd (in liq) [2010] HCA 26; (2010) 242 CLR 174, 182-183 (French CJ, Heydon, Crennan, Kiefel and Bell JJ).

[4] Re Waratah Group Pty Ltd (in liq) [2020] VSC 523, [36] (Delany J) (Re Waratah Group).

[5] Cf Pitard Consortium [2019] VSC 614; (2019) 58 VR 524, 527-534 (McDonald J).

[6] Cremin, Re Brimson Pty Ltd (in liq) [2019] FCA 1023, [48] (Moshinsky J) (Re Brimson).

[7] Naaman 641, 643, 654 (citations omitted) (Gordon, Edelman and Steward JJ).

[8] Re All Purpose Labour Pty Ltd [2024] VSC 547, [41(c)] (Sloss J) (Re All Purpose Labour).

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

[12] Sapphire (SA) Pty Ltd v Ewens Glen Pty Ltd [2011] FCA 714, [4] (Besanko J) (Sapphire).

[13] See Re Brooks, Tease Hair & Spa Pty Ltd (in liq) [2022] FCA 457.

[15] Re Brimson [51], citing Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524.

[16] Re All Purpose Labour [41(g)] (citations omitted).

[17] [2017] VSC 127; (2017) 320 FLR 118 (citations omitted).

[23] See especially Re All Purpose Labour [41(g)].