Vickers (liquidator), in the matter of Esteem Care Services Pty Ltd (in liq) v Esteem Care Services Pty Ltd

(a) all property of the Trust as being held by the Company as bare trustee, subject to any charge or lien that the Company has over that property to secure payment of Trust Creditors;

(b) subject to paragraphs 6, 7, 8 and 9 below, all proceeds of property of the Trust received in the winding up of the Company pursuant to the right of exoneration referred to in paragraph 1 above as being available for distribution to Trust Creditors in accordance with the order of priorities provided for in Div 6 of Part 5.6 of the Corporations Act 2001 (Cth) (the Act).

1. Pursuant to section 57 of the Federal Court of Australia Act 1976 (Cth), the Plaintiff be appointed as receiver, without security, over all property, rights and undertaking of the Trust, including the proceeds of any such property.
2. The Plaintiff be conferred with the following powers in respect of the property of the Trust:

(a) the powers recited in section 420 of the Act, as if each reference in that provision to 'property of the corporation' was a reference to property of the Trust; and

(b) the powers that a liquidator has in respect of property of a company by section 477(2) of the Act.

1. The need for the Plaintiff, as receiver, to file a guarantee under rules 14.21 and 14.22 of the Federal Court Rules 2011 (Cth) be dispensed with.
2. The Plaintiff, in his capacity as receiver of the property of the Trust, or in his capacity as liquidator of the Company, may have recourse to:

(a) the property of the Trust for his costs, expenses and remuneration in respect of work undertaken to render that property available to meet the claims of Trust Creditors; and

(b) the property of the Trust for his costs, expenses and remuneration properly incurred in the winding up of the Company generally.

1. For the Trust, the work referred to in paragraph 6 above is to include work relating to:

(a) the identification of Trust assets and liabilities;

(b) the identification of Trust Creditors and distinguishing them from creditors of the Company in its own right;

(c) the ascertaining of the state of the accounts between the beneficiaries of the Trust and the trustee;

(d) the recovering or attempting to recover Trust assets for the purposes of meeting the right of exoneration;

(e) the realisation or attempted realisation of Trust assets for the purposes of meeting the right of exoneration;

(f) the securing of Trust assets (or their value) to meet the right of exoneration and their application to the Trust Creditors;

(g) the distribution of funds which are the subject of the right of exoneration to those who are entitled to them; and

(h) any matter in the administration of the Trust which is reasonably ancillary to the above to the extent to which it has been undertaken for the purposes of the identified tasks.

1. The amounts to which the Plaintiff is entitled from the property of the Trust under paragraph 6 above, in respect of his remuneration in his capacity as receiver of the property of the Trust, is to be determined by the Court.
2. It is declared that the Plaintiff has a lien over the property of the Trust in respect to the amounts to be paid to him under paragraphs 6, 7 and 8 above.
3. It is declared that the Company has an equitable charge over the property of the Trust to secure the amount referred to in paragraph 1 above.
4. The Plaintiff's costs of and incidental to the application be costs in the winding up.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Delivered ex tempore, revised from transcript)

1. In this matter the plaintiff, the liquidator, reads the affidavits of Derrick Craig Vickers filed 7 November 2025 (Vicker's Affidavit), Alison McLaughlin filed 7 November 2025, the affidavit of service of Tegan Maree Wells filed 12 November 2025, and two additional affidavits of service: the first is of Kahlia Janette Smith filed 13 November 2025, and the second is of Alison McLaughlin filed 14 November 2025.
2. The defendant company, Esteem Care Services Pty Ltd (Company) was wound up in insolvency by order of Registrar Schmidt of the Federal Court of Australia on 26 September 2025, and the plaintiff was appointed its liquidator. The Company was appointed as the trustee of the Alo Family Trust pursuant to a deed dated 28 October 2019 (Trust). By clause 21.7 of the trust deed, the Company was automatically removed as trustee upon the appointment of the liquidator to it. Prior to the liquidator's appointment, the Company carried on a business in the provision of personal care services to disabled individuals in their homes and outside support services from offices located in Caboolture and Cairns in Queensland. It appears that the business was operated using funds from the National Disability Insurance Scheme.
3. The Company holds two Australian Business Numbers, one in its own right, and one in its capacity as trustee of the Trust. However, the evidence disclosed by the liquidator demonstrates that the Company seems to have only issued invoices using the Trust's ABN. There is presently some doubt as to whether the Company carried on any business in its own right, or held assets in its own right. This is largely due to the poor records kept by the Company. However, there is no doubt that it carried on business in its capacity as trustee of the Trust, and holds assets in its capacity as trustee of the Trust. The Company also incurred debts and has creditors in its capacity as trustee of the Trust. By the trust deed, it is entitled to be indemnified from the Trust's assets in respect of those debts: cl 16(b) of Annexure DCV‑6 of the Vicker's Affidavit. However, in addition, the Company may have incurred debts to suppliers and the Deputy Commissioner of Taxation in its own right.
4. The plaintiff applies for the following relief:

(1) declarations as to the Company's right of exoneration from the property of the Trust and the plaintiff's right to deal with the assets of the Trust;

(2) the appointment of the liquidator as receiver of the property of the Trust; and

(3) declarations as to the liquidator and the Company's interests in the property of the Trust.

1. I am satisfied, for the reasons advanced by Mr Wacker of counsel in his written submissions on behalf of the plaintiff, the liquidator, that the Court should make the orders in the form sought by the plaintiff, so that the assets of the Trust may be identified, gathered in, and realised for the benefit of the creditors of the Company, as the former trustee of the Trust.
2. There is some urgency to the hearing of this application:

(a) subsequent to the liquidator's appointment, it appears that the director of the Company has continued to operate the business of the Company; which, as discussed in [3], has been conducted in its capacity as trustee of the Trust. It appears that the Company may not be insured in respect of any claims made during the conduct of the business following the appointment of the liquidator: cl 10.2 of Annexure DCV‑32 of the Vicker's Affidavit;

(b) the director has taken steps to purportedly appoint a real estate agent to sell real property owned by the Company in its capacity as trustee of the Trust: Annexures DCV‑33‑35 of the Vicker's Affidavit; and

(c) finally, the director has attempted to withdraw $12,000 from a bank account held by the Company as trustee for the Trust, the day after the appointment of the liquidator.

1. I am satisfied that this application and the supporting affidavits have been brought to the attention of the Company and its known creditors.
2. I also note the appearance of Mr Ly on behalf of the director of the Company, who appears today. As at the date of this hearing, there has been no response received by the liquidator from any known creditor of the Company. Mr Ly informed me that he had not had the opportunity to read the application nor the supporting affidavit material because of the short notice upon which he was retained to act. I make no criticism of Mr Ly in appearing today, which has been of assistance to the Court. I am satisfied that the matter has been sufficiently drawn to the attention of the director of the Company and any known creditors of the Company.
3. It appears from the affidavit evidence of the liquidator that the assets of the Trust comprise at least the following assets:

(1) real property at 409/1 Brookvale Drive, Underwood, in the state of Queensland (Property): Annexure DCV-14 of the Vicker's Affidavit. According to an offer said to have been received by the real estate agent purportedly appointed to market the Property, the Property is worth approximately $837,000: Annexure DCV-35 of the Vicker's Affidavit;

(2) cash at bank of at least $93,562;

(3) the business appears to be a significant enterprise. It is said by the director of the Company to employ some 30 staff; and

(4) between four and seven motor vehicles have been identified. However, it is not clear if they are owned by the Company in its capacity as trustee of the Trust, although they appear to be trust assets, given that the debt secured by them is said to be owed by the Company as trustee of the Trust.

1. The debts of the Company appear to be as follows.

(1) a debt to the National Australia Bank secured over the Property of $462,439;

(2) various vehicle financiers with partially secured vehicles of some $370,066; and

(3) the Australian Taxation Office for at least $481,974.

1. There may be other debts owed to lessees and to trade creditors. One of the accounting files maintained by the Company as trustee for the Trust records a current liability to 'Other Creditors' of $160,926: Annexure DCV-11 of the Vicker's Affidavit. In addition, if the Company does employ 30 staff, as the director has stated, there are likely to be significant employee credit claims. However, due to the state of the Company's accounts, these amounts are not presently known by the liquidator.
2. The principles upon which the liquidator relies to be appointed as receiver of the trust assets are well known: Hosking, Re Business Aptitude Pty Ltd (in liq) [2016] FCA 1438 at [17]- [22] (Gleeson J) and the cases cited therein, Connelly, Re Gregorski Investments Pty Ltd (in liq) v 320 Nominees Pty Ltd (as trustee of Gregorski Property Trust) [2019] FCA 1400 at [21]- [25] (Derrington J) and the cases cited therein, McLean v Hill, in the matter of TMC Plumbing & Drainage Pty Ltd (in liq) [2019] FCA 1439 at [25] (Moshinsky J) and the cases cited therein. Section 57(1) of the Federal Court of Australia Act 1976 (Cth) provides such power.
3. I am satisfied, based on the affidavit evidence, that it is appropriate, for the reasons which I will shortly identify, to appoint the liquidator as receiver of the property of the Trust, to enable him to realise the assets and distribute the proceeds in accordance with the order of priorities in Division 6 of Part 5.6 of the Corporations Act 2001 (Cth) (the Act).
4. First, the liquidator has been appointed by the Court to gather in the assets of the Company and to distribute them in accordance with the priorities outlined in Division 6 of Part 5.6 of the Act. The Company presently holds the property of the Trust on bare trust. No other trustee of the Trust has been identified. Therefore, absent the appointment of the liquidator as receiver of the Trust's assets, those assets will not be realised for the benefit of the Trust's creditors.
5. Second, it appears that no attempt has been made to gather in or protect the Trust's assets. To the contrary, it appears that they have been used for an ulterior purpose, namely the continued operation of the business by the director for the benefit of persons other than the creditors of the Trust.
6. Third, there is a risk to the public if the business continues to operate in the present way. That is, it is apparently providing services to vulnerable individuals in circumstances where insurance may not respond to any potential claims.
7. Fourth, the appointment of the liquidator as receiver of the assets of the Trust will enable him to undertake further inquiries to properly understand if the Company traded in its own right. And if so, to distinguish between assets owned by the Company in its own right, and those owned in its capacity as trustee of the Trust, together with identifying creditors of the Company in its own right, and creditors whose debts were incurred by the Company as trustee.
8. Fifth, it is not apparent that the assets owned by the Trust are being properly maintained and insured for the benefit of creditors. Attempts have been made by the director to realise the Property, which has significant equity based on the asserted offer price, the equity being approximately $400,000: Annexures DCV-17 and DCV-35 of the Vicker's Affidavit.
9. Sixth, if the liquidator is appointed as receiver of the Trust property, he can gather in the property, realise it for the benefit of all creditors, call for proofs of debt, adjudicate those proofs, and distribute the Trust's assets to the creditors in accordance with the priorities outlined in the Act.
10. For those reasons, it is appropriate to make the orders sought by the plaintiff.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.