Sanderson, in the matter of Taylorsix Pty Ltd (in liq) [2021] FCA 1123

CHEESEMAN J: 1 By an Originating Process filed on 9 September 2021, the first plaintiff, who is the Liquidator of Taylorsix Pty Ltd (the Company), sought to be appointed as Receiver and manager of the property of the TaylorSix Superannuation Fund and any other property held on trust by the Company (Trust Property). The matter was attended by some urgency and came before me as Duty Judge on Friday, 10 September 2021 at which time I made orders. These are my reasons for doing so. 2 The Liquidator relied on an affidavit sworn by him on 8 September 2021 and the exhibit to that affidavit.

background 3 The Company was incorporated on 7 August 2017 and wound up on 1 July 2020 at which time the Liquidator was appointed. At that time, the two directors were Jennifer and Mark Taylor. In the period leading up to the winding up, Mr Taylor was in control of the Company. The Liquidator has had difficulties in obtaining information and records from Mr Taylor. He examined each of Mr and Mrs Taylor on 27 August 2021. 4 On 10 August 2017, the Company resolved to enter into a Trust Deed whereby a Trust known as "TaylorSix Superannuation Fund" was established and the Company became the Trustee. 5 The Company appears to have been incorporated for the purpose of acting as the Trustee of the Fund, which appears to be a self-managed superannuation fund (SMSF). At the time the Company entered into liquidation and for some period prior the Company's only activities appear to have been as the trustee of the Trust, although there are some transactions in respect of which the Liquidator has been unable to obtain an explanation. 6 The term "Trustee" is defined in the Trust Deed as "the Trustee and any other trustee appointed under the provisions of this deed". The Trust Deed relevantly provides as follows: Trustee criteria 8.1 The appointment, removal and composition of the Trustee is governed by this deed unless the Relevant Requirements otherwise provide. Appointment of Trustee 8.2 The majority of Members, subject to the other provisions of this clause, determine who acts as the Trustee, and may appoint a new or additional trustee by deed or notice in writing. Change of trustee 8.3 A person or Constitutional Corporation immediately ceases to act as a Trustee if: (a) that entity resigns by instrument in writing; (b) the Trustee is disqualified from holding office by operation of law; (c) it is or takes any step that results or may result in it becoming an externally administered body corporate as defined in section 9 of the Corporations Act 2001 (Cth); or (d) … Indemnity and lien … 12.2 The Trustee and any directors, officers or employees of a Trustee that is a Constitutional Corporation will be indemnified out of the Fund against all liabilities incurred by it or them in the exercise or purported exercise or attempted exercise of the trusts, powers, authorities and discretions vested in them pursuant to this deed or at law. 12.3 The Trustee will have a lien on and may use the money representing the assets of the Fund for the purposes of this indemnity provided that the exercise of any lien does not contravene the Relevant Requirements. 7 'Relevant Requirements' is defined as follows: any requirements (including the provisions of the SIS Act) that the Trustee or the deed must comply with to avoid a contravention of the requirements or in order for the Fund to qualify for concessional Taxation treatment as a Complying Superannuation Fund, and includes Part VIIIA of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth). 8 Upon being wound up, clause 8.3(c) was triggered. It does not appear that any other entity has been appointed as trustee of the Trust. 9 In August 2017, the Company purchased two new edge conveyors for $196,900. In September 2017, the Company purchased from Emer Pty Limited, trading as Focus Enviro, an edge radial tracked stacker for $198,000, of which it only paid $82,000, leaving the balance unpaid. A statutory demand followed and Emer was subsequently successful in its winding up application against the Company. 10 The conveyors and the stacker were delivered to a site occupied by Yamba Shipping Pty Ltd, seemingly pursuant to some form of undocumented lease. Yamba Shipping operated a sand extraction business and Mr Taylor had an indirect involvement in that business. There has been some communication between RBG lawyers, the solicitors for Yamba Shipping and the Liquidator but the arrangements by which the machinery purchased by the Company came to be in the possession of Yamba Shipping remain opaque. Yamba Shipping has since been locked out of the premises were the machinery was located. The stacker remains on that site. The conveyors are on an adjacent property, which is also the property of a third party. 11 The liquidation is without funds. There is at least one creditor, Emer, whose debt relates to the purchase of the stacker. There is a need for the Liquidator to get the assets in to maintain and realise their value. The Liquidator is concerned to secure the machinery given that it is located on the property of two separate third parties and may be at risk of being relocated. One of the third parties is seeking to re-let the property on which the stacker is located and requires it to be removed. The Liquidator seeks to delay the giving of notice to affected parties until after possession of the machinery is recovered because the machinery may be relocated.

general principles 12 The Court may, at any stage of a proceeding, appoint a receiver on such terms and conditions as it thinks fit if it is just and convenient to do so: Federal Court of Australia Act 1976 (Cth) (FCA), s 57(1). 13 Rule 14.21 of the Federal Court Rules 2011 (Cth) provides that a party may apply to the Court for the appointment of a receiver to have the powers of a receiver and manager. 14 The principles relevant to an application for the appointment of a liquidator of a corporate trustee as a receiver of trust property were recently summarised in Re Hughes (in their capacity as joint and several liquidators of Substar Holdings Pty Ltd (in liq)) and Anor [2020] FCA 1863; (2020) 149 ACSR 185 by McKerracher J (at [26]-[29]): [26] The liquidator of a corporate trustee is entitled to apply assets of the trust to satisfy debts properly incurred by the company in performance of its duties as trustee. The company as trustee has a right of indemnity or exoneration out of trust assets secured by an equitable lien or charge over those assets: Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 per Gordon J (at [14] and the authorities cited therein). [27] Where a corporate trustee is removed by operation of a disqualification clause in the trust deed (here, cl 7.6), the company assumes the position of a bare trustee. Its powers are limited to protecting the trust assets. The right of indemnity or exoneration persists, albeit that the company's lien does not confer a power of sale to realise that right: Re Brereton (in their capacities as joint and several voluntary administrators of MyHouse (Aust) Pty Ltd (admins apptd)) [2020] FCA 610 per Farrell J (at [30]). In Re Cremin (in his capacity as liquidator of Brimson Pty Ltd (in liq), Kane Retail Group Pty Ltd (in liq) and Teal Retail Group Pty Ltd (in liq)) (2019) 136 ACSR 649; [2019] FCA 1023 (Cremin), Moshinsky J summarised the current state of the law (at [49]): There has, until recently, been a difference of opinion as to whether, in such circumstances, the liquidator's power to sell the "property of the company" in s 477(2)(c) of the Corporations Act permits him or her to sell trust assets: see Re Aced Kang Investments Pty Ltd (in liq) [2017] FCA 476 at [12]. It is now settled that 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: see Jones & Matrix at [44] per Allsop CJ (Farrell J agreeing at [196]); Re Stansfield DIY Wealth Pty Ltd (in liq) (2014) 291 FLR 17; 103 ACSR 401 at [10]; Apostolou (as trustee of the VA Unit Trust & Vasiliou Family Trust) v VA Corporation of Aust Pty Ltd [2011] FCAFC 103 at [45]. 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: see Jones & Matrix at [89]. 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). (emphasis added) [28] In Amirbeaggi (in her capacity as liquidator of Simpkiss Pty Ltd (in liq)) v Simpkiss Pty Ltd (in liq) [2018] FCA 2121 (Amirbeaggi), Markovic J encountered similar facts to those in the present case and, consistent with the above passages from Cremin, considered the specific position with respect to the appointment of receivers (at [27]-[30]): 27 Upon the appointment of Ms Amirbeaggi as administrator, Simpkiss was removed as trustee of the Trust by operation of cl 11(e) of the Trust Deed and became a bare trustee. While it may have still held the assets, Simpkiss' powers in that capacity were limited to protecting the trust assets. It retained its right of indemnity or exoneration and its lien over the assets of the Trust and had the right to hold the assets but not to sell them: Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 at [22]-[28]…. 28 In those circumstances, that is where upon the appointment of a liquidator or administrator the company becomes a bare trustee, if a sale is necessary the liquidator or administrator must obtain a court order to sell or an order for the appointment of a receiver: Jones (in his capacity as liquidator of Killarnee Civil and Concrete Contractors Pty Ltd (in liq)) v Matrix Partners Pty Ltd (2018) 260 FCR 310; 354 ALR 436; 124 ACSR 568; [2018] FCAFC 40 at [44] per Allsop CJ (Jones). 29 Section 57(1) of the Federal Court Act 1976 (Cth) empowers the Court at any stage of a proceeding and on such terms and conditions as it thinks fit to appoint a receiver by interlocutory order in any case in which it appears to be just or convenient to do so. In Re Business Aptitude Pty Ltd (in liq) [2016] FCA 1438, a case similar to the present case, Gleeson J noted that the "general ground upon which the Court appoints a receiver is the protection or preservation of property for the benefit of those who have an interest in it": at [17]. 30 Here, as noted above, the office of trustee of the Trust became vacant as a result of Ms Amirbeaggi's appointment as administrator. There was no suggestion that a new trustee would be appointed. It was thus necessary to appoint Ms Amirbeaggi as receiver and manager to permit her to further deal with any remaining Trust assets, bring certainty to the process of finalising the liquidation and secure Simpkiss' right of indemnity out of the assets of the Trust for the benefit of Simpkiss' (and the Trust's) creditors. [29] Although in certain circumstances, particularly where all the trust property will be exhausted by the liabilities, it is appropriate for the liquidator to be given a discrete power of sale, the common course is to appoint the liquidators as receivers over all trust property for the purpose of realising the assets for the benefit of creditors: Cremin (at [50]) citing Amirbeaggi; Jones (in his capacity as liquidator of Killarnee Civil & Concrete Contractors Pty Ltd (in liq)) v Matrix Partners Pty Ltd (2018) 260 FCR 310; 354 ALR 436; 124 ACSR 568; [2018] FCAFC 40 per Siopis J (at [142]); Taylor (in his capacity as liquidator of CJ & KL Bond Super Pty Ltd (in liq)) v CJ & KL Bond Pty Ltd (as trustee for the CJ & KL Bond Superannuation Fund) [2018] FCA 1430; Staatz (as liquidator of Wollumbin Horizons Pty Ltd (in liq)) v Berry (No 3) (2019) 138 ACSR 231; [2019] FCA 924. 15 In the present context, where the Company was acting as the Trustee of an SMSF at the time the Liquidator was appointed, it is also relevant to have regard to the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act). 16 In Deputy Commissioner of Taxation, in the matter of The Mai Family Pty Ltd (in liq) v The Mai Family Pty Ltd (in liq) [2019] FCA 865; (2019) 136 ACSR 638, Besanko J encountered similar facts to those in the present case and considered the specific position with respect to the appointment of a receiver to trust property in circumstances where the corporate trustee was the trustee of a SMSF and in liquidation ([13]-[16]): 13 Section 120(2)(e) of the SIS Act provides that for the purposes of Pt 15 of the Act, a body corporate is a disqualified person if the body corporate has begun to be wound up. The defendant is a disqualified person for the purposes of Pt 15 of the SIS Act. Section 126K of the SIS Act provides that a person commits an offence if the person is a disqualified person and "is or acts as a trustee … of a superannuation entity". 14 In Re Stansfield DIY Wealth Pty Ltd (in liq) [2014] NSWSC 1484; (2014) 291 FLR 17 (Re Stansfield), Brereton J said (at [35]): By operation of Superannuation Industry (Supervision) Act 1993, s 120(2)(e), upon the commencement of the winding up the [trustee] became a disqualified person for the purposes of that legislation and thereafter commits an offence under s 126K if it is or acts as trustee of a superannuation entity. However, nothing in the Act provides that upon becoming a disqualified person a trustee thereupon ceases to be trustee. 15 By reason of s 126K of the SIS Act, the defendant commits an offence, not only acting as a trustee, but also in being a trustee. 16 The SIS Act does not provide that upon becoming a disqualified person, the defendant ceases to be the trustee of the superannuation fund. If it acts as a trustee it commits an offence, and of concern to the liquidator in this case, is Brereton J's observation in Re Stansfield (at [36]) that a liquidator of a company which acts as a trustee may be liable as an accessory. 17 In Mai Family, the liquidator brought an application for directions or orders under s 90-15 of the Insolvency Practice Schedule (Corporations) (IPS), Schedule 2 to the Corporations Act 2001 (Cth) and for the appointment of a receiver under s 57(1) of the FCA. An application under s 90-15 of the IPS has not been made in the present case. 18 In Re Stansfield DIY Wealth Pty Ltd [2014] NSWSC 1484; (2014) 103 ACSR 401 Brereton J (as his Honour then was) concluded that (at 411 [38]): …while the company in liquidation remains the trustee of the super fund, it commits an offence by doing so, and would more conspicuously do so if it exercised its power of sale. If, as would be prudent, it resigned as trustee, it would have no power of sale. 19 The SIS Act imposes obligations in relation to the conduct of self-managed superannuation funds including a duty to notify the Commissioner of Taxation when the fund ceases to be a self-managed fund: SIS Act, ss 106A, 17A and 17B. The Commissioner may then take action including issuing notices (s 253A) and accepting and enforcing undertakings (s 262A). 20 In Re Stansfield the Court required the receiver to deliver a report to the Commissioner at the conclusion of the realisation of the trust assets and payment of costs and expenses, to facilitate any further regulatory steps which might prove necessary as a consequence of the corporate trustee's liquidation.

Consideration 21 The Liquidator has deposed to the fact that the Company's activities appear to be limited to acting as Trustee of the Trust. The Company became a bare trustee under the Trust Deed on the Liquidator's appointment. The Company as Trustee is entitled to indemnification from the trust assets in relation to liabilities incurred as Trustee which is supported by a lien over the trust assets: cls 12.2 and 12.3. It also has a right of indemnity or exoneration and a lien over the assets of the Trust pursuant to general principle: Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 at [22]-[28]. 22 The Company has liabilities which it incurred in its role as Trustee (including the unpaid balance of the purchase price of the stacker owed to the petitioning creditor). The Liquidator has incurred remuneration and expenses in his efforts to locate the Trust Property without the cooperation of the directors. The Liquidator has determined that there is Trust Property that is available to be realised for the benefit of trust creditors and in payment of his remuneration. The Liquidator is not in a position at this stage to seek approval of his remuneration as liquidator or as receiver. It will be necessary for him to bring applications under s 425(1) of the Corporations Act and s 60-5(1) of the IPS at an appropriate time in the future. 23 In these circumstances, the Liquidator was concerned to be appointed as a Receiver and to exercise the powers of a Receiver over the Trust Property to enable him to exercise the power of sale in a way that limits potential liability under the SIS Act for the Company and himself (as an accessory). I agree that the appropriate course is for the Liquidator to be appointed as Receiver for the reasons articulated by Besanko J in Mai Family in similar circumstances (at [18] - [21]): 18 The liquidator has deposed to the fact that the defendant appears only to have performed the role of trustee of the Trust. The defendant has a right to be indemnified for its debts and liabilities incurred as trustee out of the assets of the Trust. This case involves the right of exoneration, not recoupment. The right of indemnity is supported by an equitable charge and lien over the assets of the Trust. However, the assets of the Trust do not form part of the "property" of the insolvent company. The right is not a beneficial right to the assets of the Trust. The right of exoneration secured by an equitable charge and lien over the assets is the "property" of the insolvent company within the meaning of s 9 of the Corporations Act. One difficulty for the defendant is how it can enforce its right of exoneration if it is prohibited by s 126K of the SIS Act from dealing with the Trust assets. The way in which this difficulty can be overcome is by the appointment of a receiver and manager of the Trust assets. 19 In Re Stansfield, Brereton J said (at [51]): In such circumstances, the appropriate course for a liquidator is to seek appointment as a receiver of the trust assets, by way of enforcement of the (former) trustee's right of indemnity, pursuant to which he could realize trust assets, and apply the proceeds to discharge the liabilities of the company (all of which were incurred in the capacity of trustee), and recover the costs of the receivership and, because the company's sole function was to act as trustee of the super fund, the general costs of liquidation. 20 By this mechanism, the receiver is able to enforce the corporate trustee's right of indemnity and to apply the proceeds to discharge the liabilities incurred by the defendant in its capacity as trustee and to enable the liquidator to recover the costs of the receivership and because the defendant's sole function was to act as trustee of the superannuation fund, the general costs of the liquidation. 21 As I have said, in this case the defendant carried out only one business and that was as the trustee of the Mai Superannuation Fund. In Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310, Allsop CJ said (at [102]): Each of the provisions of s 556 has its own underlying legal policy and its own terminology. The analysis is easiest where the company has only ever acted as here as corporate trustee for one trust. In such circumstances, the property of the company that includes the right of exoneration and the funds obtained from its exercise is to be distributed in accordance with the statutory command: ss 501 and 556. In such circumstances, the words of the statute are to be applied to direct the distribution of the property of the company. 24 In addition, having regard to observations of Brereton J in Re Stansfield (extracted at [17]), it would be prudent for the Company to consider resigning as Trustee. 25 In the particular circumstances of this case and in the absence of an application for directions under s 90-15 of the IPS, I determined that it was appropriate for notice to be given to the Commissioner and the Australian Prudential Regulation Authority, as the relevant regulatory authorities for the purpose of the SIS Act and for the Receiver to report to the Commissioner at the conclusion of the realisation of the trust assets. 26 Accordingly, I was satisfied on hearing the ex parte application that it was just and convenient to make orders appointing the Liquidator as Receiver to the Trust Property and to make ancillary orders including in respect of the giving of notice to the persons who may be affected by the orders. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.