RE ROBINS NEST ENTERPRISES PTY LTD (IN LIQUIDATION); EX PARTE GREGORY PAUL QUIN as liquidator of ROBINS NEST ENTERPRISES PTY LTD (IN LIQUIDATION) [2025] WASC 291 (25 July 2025)

1. On 29 April 2015, the Company was incorporated. The Company's sole director, company secretary, and shareholder is Katherine Susan Parana Gedara. The Company is the trustee of the MK Sheridan Trust (Trust) and, in that capacity, carried on business as a franchisee of Red Rooster in the Noranda Square Shopping Centre (Property).
2. On 27 June 2025, Mr Quin was appointed liquidator of the Company.[2]
3. Based on his investigations to date, Mr Quin believes:[3]

(a) the Company only acted in its capacity as trustee of the Trust and did not carry on business in any other capacity;

(b) the Company did not own any assets in its own right;

(c) all assets were Trust assets;

(d) the Company did not trade or prepare financial statements in its own right; all financial statements were prepared in the name of the Trust;

(e) neither the Company nor the Trust owned any real property; and

(f) the Trust's assets include plant and equipment (which is located at the Property) and a motor vehicle (which is subject to a security interest).

1. The liabilities of the Trust include trade creditors and trade financing, employee entitlements and superannuation, taxation liabilities, a related party loan account, and a director loan account.[4]
2. Among the books and records of the Company are copies of the Trust deed and a deed amending the Trust deed dated 21 June 2018. The Trust deed discloses that the Trust was established on or around 29 April 2015. Pursuant to cl 7.6 of the Trust deed, on the appointment of Mr Quin as liquidator, the Company was required to retire as trustee of the Trust and was disqualified from acting as trustee.[5]
3. Mr Quin has caused the Company to enter an Asset Sale Agreement (Agreement) for the sale of the Trust assets located at the Property. A condition precedent to the completion of the Agreement is the determination of this application.[6]

Should the first plaintiff be appointed as receiver of the Trust and should the directions sought be made?

1. The legal principles that govern this application are well known and can be summarised as follows.
2. Where a corporate trustee enters external administration, the company's right of indemnity and accompanying equitable lien over the assets of the trust survives the appointment. Where a company is 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. However, the liquidator does not have the power to sell those assets to satisfy that indemnity unless they obtain orders from the court.[7]
3. In those circumstances, the liquidator has, in essence, two options. First, to apply to be appointed as receiver and manager of the trust, or alternatively, to apply for an order that confers power on the liquidator to deal with the assets of the trust.
4. In this case, the plaintiffs have sought orders for Mr Quin to be appointed as receiver and manager of the Trust.
5. Section 25(9) of the Supreme Court Act 1935 (WA) gives the court power to appoint a receiver where it appears to be just and convenient.
6. Appointing the liquidator of a corporate trustee as 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. It also aids in the vindication of the trustee company's right of indemnity out of the trust's assets.[8]
7. On the evidence before me, I accept that by reason of cl 7.6 of the Trust deed, on the appointment of Mr Quin as liquidator, the Company was immediately disqualified from acting as trustee of the Trust. As a consequence, the Company is now a bare trustee and does not have the power to sell or otherwise deal with the assets to vindicate the Company's right of indemnity out of the Trust's assets.
8. For the following reasons, I accept that it is appropriate for Mr Quin to be appointed as receiver and manager of the Trust.
9. First, this is in accordance with the legal principles that I have outlined and will protect the Company's right of indemnity, as well as the position of creditors.
10. Second, there are other advantages with this proposed order, including that Mr Quin is subject to the regulatory regime applicable to insolvency practitioners, has professional indemnity insurance, and is subject to the continued supervision of the court.
11. Mr Quin's evidence, which I accept, is that the Company has only acquired assets and incurred liabilities in its capacity as trustee of the Trust. For this reason, I accept that it is also appropriate to make directions under s 90-15 of the IPS that Mr Quin was and is acting properly and is justified in proceeding to conduct the affairs of the Trust on the basis that the business and assets of the Company comprised the assets of the Trust.

1. The plaintiffs sought orders for the costs of the application be paid from the Trust property. I consider this to be the appropriate costs order and will make this order.
2. I also accept that the form of orders sought in terms of service of the court's orders, and the allowance for any aggrieved party to apply to this court to vacate or vary these orders, will protect the creditors of the Company from any possible prejudice of this application. While the period of seven days is a relatively short time period for creditors to seek to set these orders aside, I accept that, given the entry into the Agreement, that this is an appropriate time period in the circumstances of this case.
3. For these reasons, it was my view that it was appropriate to make orders broadly in terms of the plaintiffs' originating process.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Gyles Louis Peter Davies filed 11 July 2025 [4] - [10], 'GLPD-1' - 'GLPD-3'.

[2] Affidavit of Gregory Paul Quin filed 4 July 2025 [6], 'GPQ-3'.

[3] Affidavit of Gregory Paul Quin filed 4 July 2025 [7], [9], [12], 'GPQ-7' - 'GPQ-8'.

[4] Affidavit of Gregory Paul Quin filed 4 July 2025 [13], 'GPQ-5'.

[5] Affidavit of Gregory Paul Quin filed 4 July 2025 [14] - [18], 'GPQ-9' - 'GPQ-10'.

[6] Affidavit of Gregory Paul Quin filed 4 July 2025 [20] - [24], 'GPQ-12'.

[7] See Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310 [44], [85] ‑ [91] (Allsop CJ), [139], [142] (Siopis J), [198] (Farrell J); Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 [22] - [28] (Gordon J).

[8] In the matter of Mecfab Holdings Pty Ltd [2015] NSWSC 46 [9].