Ward, in the matter of Platinum Quest Pty Ltd (in liq) v OJMAC Pty Ltd as trustee for the Cheree Leanne Family Trust

Federal Court of Australia|2024-02-06|Before: Derrington J

The second plaintiff, Platinum Quest Pty Ltd (in liquidation) (ACN 135 017 471) (the Company), has a right of exoneration from the property of the Cheree Leanne Family Trust (formerly the C & C Callaghan Family Trust) (the Trust) for debts incurred by the Company as trustee of the Trust which are provable in the Company's liquidation (the Trust Creditors).
The first plaintiff, as liquidator of the Company, is justified in treating: (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 Orders 3, 8, 9 and 10, all proceeds of property of the Trust received in the winding up of the Company pursuant to the right of exoneration referred to in Order 1 above as being available for distribution to Trust Creditors in accordance with the order of priorities provided for in Div 6 of Pt 5.6 of the Corporations Act 2001 (Cth) (the Act).
The first plaintiff has a lien over the property of the Trust in respect of the amounts to be paid to him under Orders 8, 9 and 10 below.
The Company has an equitable charge over the property of the Trust to secure the amount referred to at Order 1 above.

Pursuant to s 57 of the Federal Court of Australia Act 1976 (Cth), the first plaintiff be appointed as receiver, without security, over all present and after acquired property, rights and undertakings of the Trust, including the proceeds of any such property.

Introduction 1 This is an application made by Mr Adam Francis Ward as the liquidator of Platinum Quest Pty Ltd (in liquidation) (the Company). He seeks orders pursuant to s 600K of, and ss 45-1 and 90-15 of Sch 2 to, the Corporations Act 2001 (Cth) (the Act), as well as s 57 of the Federal Court of Australia Act 1976 (Cth) appointing him receiver of the property of the Cheree Leanne Family Trust (formerly the C & C Callaghan Family Trust) (the Trust).

Background 2 The Company is the former trustee of the Trust. It was appointed as trustee pursuant to a deed dated 21 January 2009, and, by that deed, it was entitled to the usual indemnities and exonerations out of the Trust assets. 3 Pursuant to cl 8 of the deed, the power to appoint a new trustee, and to remove a trustee, vested in the appointors. The appointors were a Ms Cheree Sharp (formerly known as Ms Callaghan) and a Ms Marina McIntyre. On 22 December 2021, the Company was removed as trustee and replaced by the first defendant, OJMAC Pty Ltd (OJMAC). 4 It appears that, at least until that date, the Company did not carry on any activity in its own right, and incurred debts only in its capacity as trustee of the Trust. 5 On 22 August 2023, the Company was wound up in insolvency by order of Ryan J of the Supreme Court of Queensland. The persons behind the Company were, in a general sense, Ms Sharp and her former husband, Mr Callaghan, though it appears Ms Sharp has been the sole director and shareholder of the Company since early 2022. Ms Sharp and Mr Callaghan are presently involved in proceedings in the Federal Circuit and Family Court of Australia (Division 2). As a consequence of those proceedings, the second defendant, Mr Habib Mellick, was appointed as a trustee for the sale of various property, including the property, "Fairlight Station". 6 The order of the Federal Circuit and Family Court of Australia appears to include within its scope the property of the Trust which is located upon Fairlight Station. However, Mr Mellick has taken a very reasonable approach to Mr Ward's attempts to deal with the property of the Company. In particular, he does not oppose the appointment of Mr Ward as a receiver of the assets of the Trust and particularly does not oppose the orders sought on this application. Whilst he has presently made arrangements for an auction of Fairlight Station to be held on 19 March 2024, the assets of the Trust are not the subject of that auction. It is a matter of remark that Mr Mellick was not appointed to all of the Trust assets, but rather only to those assets which were located on Fairlight Station.

No appearance on behalf of OJMAC 7 At this juncture, it is appropriate to mention that the current trustee and first defendant, OJMAC, did not appear at the hearing of this application. When this matter came before the Court on an earlier case management hearing, Ms Sharp, the sole director of OJMAC, appeared and was given leave to appear on behalf of the company on that occasion. Orders were made which provided for the filing of the parties' material in relation to the present application. No materials were subsequently filed by OJMAC. 8 A number of days prior to the hearing of this application, the solicitors for Mr Ward and the Company very appropriately referred me to correspondence received from Ms Sharp's solicitors in the other proceedings, not the solicitors on the record in this matter, enclosing evidence that Ms Sharp may be suffering from medical conditions requiring her treatment in hospital. It can be assumed that Ms Sharp remains indisposed, as she did not appear at the hearing. In the circumstances of this case, however, it is not appropriate to adjourn the matter because of her inability to appear. In this Court, of course, a company can only appear, without leave having been granted, by solicitors. No solicitors appeared at the hearing, and it is not clear that OJMAC was not able to instruct solicitors, despite Ms Sharp being indisposed. 9 It ought to be noted that counsel provided very clear and logical written submissions to the Court in relation to whether an adjournment should be granted, which were of great assistance. The propriety of counsel and the instructing solicitors in drawing Ms Sharp's inability to appear to the Court's attention should not go unacknowledged.

Assets of the Trust 10 Mr Ward has sought to identify the assets of the Trust which, in his opinion, comprise various items of plant and equipment. Although his inquiries remain ongoing, and there has been some difficulty in identifying the precise location of the Trust assets, various pieces of correspondence assist in identifying where the majority of the plant and equipment is located. In particular, in a letter dated 28 August 2023 from a Ms Charis Lux of Murray & Lyons Solicitors, Ms Sharp's solicitors in the other proceedings, the following was stated: We confirm that the companies are not trading and that the main assets are the items of plant and equipment owned by Platinum Quest Pty Ltd as trustee for the Cheree Leanne Family Trust (formerly the C&C Callaghan Family Trust). … We confirm that [our] client is keen to see the plant and equipment sold and debts paid and to co-operate in order to have that occur. … (Emphasis in original). 11 The reference to "the companies" is a reference to Platinum Quest Pty Ltd and another company which was controlled by Ms Sharp. 12 Similarly, in an affidavit of Ms Lux affirmed 10 July 2023, which was filed in the winding up proceedings in relation to the Company, Ms Lux deposed to specific plant and equipment owned by the Company which was said to have an estimated value of approximately $1 million to $1.2 million. That plant and equipment was said to be located at Fairlight Station. 13 Further evidence of the nature and extent of the Trust assets can be found in an order made in the other proceedings on 26 May 2021, which annexes a list of plant and equipment to be sold by Ms Sharp, although the provenance of that plant and equipment remains unclear. 14 The Company's former accountants have also provided to Mr Ward a copy of the Trust's financial statements for the year ended 2021, which reveal that, as at 30 June 2021, the Trust had assets valued at approximately $1.355 million. 15 Mr Ward has subsequently ascertained, in general terms at least, that some of the plant and equipment of the Trust is under Mr Callaghan's control located at Fairlight Station and some under Mr Callaghan's control not located there. He also identified that some is in Ms Sharp's possession. 16 Further evidence of the Trust assets appears in a recent letter from Murray & Lyons Solicitors dated 25 January 2024 enclosing an application filed in those other proceedings listing assets which includes assets of the Trust said to be held by the Company, including moveable property such as motor vehicles, helicopters, heavy machinery said to have a value of more than $1.3 million.

Debts of the Trust 17 The total estimated debts of the Trust, as set out in the affidavit of Mr Ward, are as follows: (a) National Australia Bank Limited - $434,110.72; (b) Hunter Premium Funding - $12,734.08; (c) Queensland Rural and Industry Development Authority (QRIDA) - $193,993.42; (d) Australian Taxation Office - $127,767.43; (e) Callaghan Pastoral Holding - $457,531.00; (f) Millar Teitzel Accountants & Advisors - $2,750.00; (g) Murray & Lyons Solicitors - $16,451.71. 18 Suffice it to say there are substantial debts, but it must also be recognised that the figures given by Mr Ward are preliminary estimates as, at this point in time, no proofs of debt have been called for and, of course, none have been assessed. Of the amounts identified by Mr Ward, the sum owed to QRIDA is secured, whilst the others remain unsecured. Despite Mr Ward's efforts, he identified that the above estimation of debts does not include any shortfall in debts owing to other secured creditors holding security over specific assets. He observed that there is a risk that those creditors may make claims against the Company if they suffer a shortfall on realisation of the assets the subject of their security. 19 I am satisfied, and it seems somewhat uncontroversial, that the Company acted as the trustee of the Trust and only in that capacity at least until its removal on 22 December 2021. Necessarily, the debts that it incurred until that time were incurred in the performance of its duties as the trustee, and for that reason, it is entitled to the usual rights of exoneration and indemnity in respect of them. Mr Ward was able to identify in his affidavit the portion of each of the above debts which was incurred or arose prior to, and following, the date the Company ceased as trustee of the Trust.

Relevant principles 20 In relation to the appointment of receivers to trust assets, s 57(1) of the Federal Court of Australia Act 1976 (Cth) gives the Court specific power to appoint receivers. It provides as follows: 57 Receivers (1) The Court may, at any stage of a proceeding on such terms and conditions as the Court thinks fit, appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient so to do. 21 The nature of the power under s 57 in respect of the appointment of a receiver to trust property was referred to by Gleeson J in Hosking, re Business Aptitude Pty Ltd (in liq) [2016] FCA 1438 [17] - [22] as follows: The general ground upon which the Court appoints a receiver is the protection or preservation of property for the benefit of persons who have an interest in it: QBE Insurance (Australia) Ltd v WA Metal Recycling Pty Ltd, in the matter of WA Metal Recycling Pty Ltd (in Liq) [2016] FCA 238 ("QBE Insurance") at [13], citing Sapphire (SA) Pty Ltd v Ewens Glen Pty Ltd [2011] FCA 600 at [15]. Where a trustee is removed, it retains a right of indemnity from the trust assets secured by an equitable charge over them for its liabilities incurred by reason of acting as trustee: In the matter of Stansfield DIY Wealth Pty Ltd (in liquidation) [2014] NSWSC 1484; (2014) 291 FLR 17 ("Re Stansfield") at [10]. There is a conflict of authority as to whether the liquidator of a corporate trustee, which has ceased to be trustee, has the power to sell trust assets to enforce the (former) trustee's right of indemnity. In Apostolou v VA Corporation of Aust Pty Ltd [2010] FCA 64; (2010) 77 ACSR 84, Finkelstein J held, at [48]-[50], that the liquidator of a corporate trustee which held legal title to trust property in which it also had an equitable interest could sell the subject property pursuant to the power of sale conferred by s 477 of the Act and that this survived the removal of the corporate trustee. However, in Re Stansfield, Brereton J disagreed with the decision of Finkelstein J and held (at [10],[16]-[20],[30],[33]) that, if a trustee company ceases to be trustee of a trust it can no longer exercise the trustee's power of sale under the trust instrument or general law and that s 477(2)(c) of the Act does not empower the liquidator to sell property held by the trustee company on trust, even if the trustee company has an equitable charge over it, because the property is not in itself "property of the company". Notwithstanding this conflict of authority, it is well-established that a receiver and manager can be appointed over trust property to secure the trustee's right of indemnity out of the assets of the trust: SMP Consolidated Pty Ltd (in liquidation) v Posmot Pty Limited [2014] FCA 1382 ("SMP Consolidated") at [7] citing Re Indopal Pty Ltd (1987) 12 ACLR 54 at 57; Kerr, in the matter of Angel's Castle Pre-School Pty Ltd (In Liquidation) [2010] FCA 786 ("Angel's Castle Pre-School") at [25]; In the matter of Gramarker Pty Ltd; Clifford Sanderson (as liquidator of Gramarker Pty Ltd) v Kerr [2014] NSWSC 243 at [6]-[7]; Re Stansfield at [31], [33], [45]. This Court has exercised its power under s 57(1) of the FCA Act for the purpose of appointing a liquidator of a former trustee company as receiver and manager of the trust, for example, in QBE Insurance and in Kite v Mooney, in the matter of Mooney's Contractors Pty Ltd (in liq) [2016] FCA 886. 22 Her Honour's observations reflect the general principles on which a court might appoint an erstwhile trustee as the receiver of trust property for the purposes of preserving and benefitting the persons who have an interest in it. 23 In Connelly, in the matter of Gregorski Investments Pty Ltd (in liq) v 320 Nominees Pty Ltd as trustee of the Gregorski Property Trust [2019] FCA 1400, I considered a similar application to the present. In that case, I made the following observations (at [21] - [25]) as to the approach of courts to make orders permitting liquidators to sell trust assets, or to be appointed as receivers: [I]n Cremin, re Brimson Pty Ltd (in liq) [2019] FCA 1023, Moshinsky J said at [50]: The courts are generally willing, upon an appropriate application, to make orders permitting the liquidator of a (former) corporate trustee to sell trust assets. In situations where the property of the trust will be exhausted following its sale and subsequent distribution to creditors, it may be appropriate merely to give the liquidator a power of sale: see Jones & Matrix at [91]. The more common course is, however, for the liquidator of the insolvent (former) corporate trustee to apply to be appointed a receiver for the purpose of selling the trust assets and distributing the proceeds among trust creditors: see Jones & Matrix at [142] per Siopis J; Amirbeaggi, in the matter of Simpkiss Pty Ltd (in liq) [2018] FCA 2121 (Amirbeaggi); Taylor v CJ & KL Bond Super Pty Ltd, in the matter of CJ & KL Bond Pty Ltd (in liq) [2018] FCA 1430 (Taylor v CJ & KL Bond Super Pty Ltd); Staatz v Berry, in the matter of Wollumbin Horizons Pty Ltd (in liq) (No 3) [2019] FCA 924. Orders appointing a liquidator as a receiver for this purpose may be made nunc pro tunc to authorise sales of trust assets that have already occurred: Jones & Matrix at [91], [152], [198]. It must also be observed that an erstwhile trustee who owes debts incurred in the performance of its duty as trustee is entitled to a lien over the assets of the trust despite the cessation of their trusteeship. In Lane v Deputy Commissioner of Taxation (2017) 253 FCR 46 at [52] I said: Additionally, as the lien which protects the right of exoneration is merely an equitable lien, it is only enforceable by judicial sale or by the appointment of a receiver and the making of an order by the Court that the trustee is to be reimbursed or exonerated. A trustee has no further "ownership rights" which, necessarily, would need to exist before a trustee would be entitled to the remedy of foreclosure or sale out of Court (Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550 at [18]; Melbourne Tramways Trust v Melbourne Tramway & Omnibus Company Ltd (1887) 13 VLR 487 at 490; Re Pumfrey (1882) 22 Ch D 255 at 262; Re Stucley [1906] 1 Ch 67). Given the above, it is difficult to ascertain how these limited rights in the trustee could be described as amounting to "trust property" which is legally owned by the trustee but which beneficially belongs to the beneficiaries and which is only to be used for their benefit. Despite the absence of ownership rights in the assets of the trust, the trustee's interest as the holder of the lien is proprietary and to the extent to which it exists it, pro tanto, reduces the interests of the beneficiaries in the trust assets. This was made clear in Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360, 369-370 where four of the five members of the High Court (Stephen, Mason, Aickin and Wilson JJ) said: Property which is an asset of a trading estate carried on by a trustee is properly described as trust property: Dowse v Gorton; Jennings v Mather. However, as we have already indicated, that does not mean that the cestuis que trust are necessarily entitled to call for the delivery of the property. If the trustee has incurred liabilities in the performance of the trust then he is entitled to be indemnified against those liabilities out of the trust property and for that purpose he is entitled to retain possession of the property as against the beneficiaries. The trustee's interest in the trust property amounts to a proprietary interest, and is sufficient to render the bald description of the property as "trust property" inadequate. It is no longer property held solely in the interests of the beneficiaries of the trust and trustee's interest in that property will pass to the trustee in bankruptcy for the benefit of the creditors of the trust trading operation should the trustee become bankrupt. (footnotes omitted) See also Chief Commissioner of Stamp Duties v Buckle (1990) 192 CLR 226 at 246-247 [50] and Bruton Holdings Pty Ltd (in liq) v Commissioner of Taxation (2009) 239 CLR 346 at 358-359 [43]. The lien identified above may not be enforced absent a court order, and it has now been recognised that the liquidators of an erstwhile corporate trustee might properly be appointed as receivers of the property of the trust in order to effect a sale so as to enforce the lien.

Whether Mr Ward ought to be appointed as receiver of the property of the Trust 24 As mentioned, Mr Mellick did not oppose the making of the application. Counsel for the plaintiffs otherwise, very properly, drew the Court's attention to various indications given by Ms Sharp over time of her intention to sell the Trust assets. 25 In particular, on 4 September 2023 and 14 September 2023, she asserted her intention to take possession of certain items of plant and equipment, and to realise that Trust property for the benefit of the Company. However, as was submitted by counsel, she has not done so despite her assurances, and there seems to be no evidence of any effort, on her part, to do so. That ought not be taken as too harsh a criticism - it is apparent that the circumstances of the other proceedings in which she is involved may have inhibited her ability to have access to Fairlight Station and other Trust assets. She does not necessarily know where all of the Trust assets are located, and the identification and collection of them may prove difficult, given her current relationship with her erstwhile husband. This rather emphasises the need for an independent person, such as Mr Ward, to be given the powers to receive and sell the assets for the Trust. 26 The present case is the archetypal case where a receiver should be appointed to the property of the Trust to allow the assets to be realised and distributed in accordance with the priorities in Div 6 of Pt 5.6 of the Act. 27 As was pointed out by counsel, the most important reason to grant the orders sought is that a receiver appointed by the court, as an adjunct to exercising his powers as a liquidator, has statutory duties to gather any assets of the Company, and distribute them in accordance with the Act. Allowing Ms Sharp to undertake those tasks will not provide the same protections given by the Act, and will not provide for the calling for, and adjudication of, proofs of debt, a task which is to be carried out by a liquidator. 28 Further, Ms Sharp's proposed approach, although well-intended, seeks to pool all the assets available and realise them, including Fairlight Station itself. She would then seek to cause the proceeds of the sales to be distributed in a cascading way, such that some liabilities will be discharged ahead of other parties' liabilities. This is an anathema to the distribution in accordance with the Act, and particularly, in relation to the creditors of the Company. 29 Again, whilst Mrs Sharp's approach may be well-intentioned, it is not one which ought to be followed. As was also pointed out by Mr Wacker, the proposal to sell the assets and distribute them in accordance with their proposed cascading distribution fails to take into account the fact that it is likely that some creditors will remain unpaid in part and OJMAC, as the current trustee, would have no power to give valid discharges to the debts owed to the Company, and the creditors who are only paid some money will remain creditors of the Company. To that it can be added that there is no clarity around the approach proposed by Ms Sharp to sell the assets and in particular, no temporal limitation has been identified for the sale of the Trust assets, and, despite past assurances that the assets would be sold, that has not occurred to date. 30 There is no sufficient certainty surrounding the sale process proposed by Ms Sharp which might give this Court pause in relation to the application before it. Whilst there is some hesitancy to make findings about the conduct of OJMAC in its absence, in the sense that although it was given notice of the proceedings it has not appeared, on the evidence that was produced, the Court would lack confidence in OJMAC's ability to advance the interests of the Company and its creditors. Indeed, the evidence before the Court shows there has been a great deal of delay on the part of Ms Sharp, whether intended or not, to realise the assets. 31 It also appears that, during the course of the winding up proceedings, some assets of the Trust were sold, and importantly, those assets were the subject of QRIDA's security. The proceeds were used to repay equipment loans (other than to QRIDA), for the payment of insurance, and to purchase two new vehicles. It is apparent that Ms Sharp did not inform QRIDA of the change of trustee for the Trust, and that change only came to light following the appointment of the liquidator. Indeed, Ms Sharp omitted to inform QRIDA or the Supreme Court of Queensland that the Company had ceased to be trustee of the Trust, despite taking an active role in opposing its winding up. Again, a number of statements of intention to realise the property of the Trust to pay the Company's creditors have been made, but no steps have ever materialised. More importantly, the evidence in the present proceedings indicates that it would be difficult for Ms Sharp to even have access to the assets of the Trust, let alone to subsequently realise them.

Conclusion 32 In these circumstances, the weight of all the evidence points in favour of appointing the liquidator, Mr Ward, who is an officer of the Court and who has experience in the sale of plant and equipment and will have the authority to act, as receiver to ensure that the sale of the property of the Trust will be conducted in an orthodox manner and in accordance with the relevant provisions of the Act. 33 In particular, a declaration should be made as to the Company's right of indemnity from the Trust property for the debts it incurred as trustee and which are provable in the Company's liquidation. In the circumstances, the evidence establishes a sufficient basis to further declare that Mr Ward, as liquidator of the Company, is justified in treating: (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 the property to secure payment of the Trust creditors; and (b) subject to other orders, all the proceeds of the property of the Trust received in the winding up pursuant to the right of exoneration as being available for distribution to Trust creditors in accordance with the order of priorities in Div 6 of Pt 5.6 of the Act. 34 As is usual in cases of this nature, Mr Ward should be appointed as receiver "without security" and that appointment should be over all present and after-acquired property rights and undertakings of the Trust including the proceeds of any property. It is appropriate, too, that Mr Ward as the receiver be given appropriate powers to deal with the Trust property, in particular: (a) all powers referred to or recited in s 420 of the Act, as if the references to "property of the corporation" are a reference to the "property of the Trust"; and (b) the powers that a liquidator has in respect of property of a company by s 477(2) of the Act. 35 As is also usual in cases of this nature, the need for Mr Ward to file any guarantee under rr 14.21 and 14.22 of the Federal Court Rules 2011 (Cth) can be dispensed with. Appropriate orders should also be made permitting Mr Ward to have access to the property of the Trust for his costs and expenses and remuneration in respect of work undertaken by him. 36 It should be noted that the orders will appropriately provide that the amount which Mr Ward will be entitled to from the property of the Trust in respect of his remuneration in his capacity of receiver of the Trust will be determined by the Court. 37 Mr Ward also seeks a declaration as to his entitlement to a lien over the property of the Trust. There is no reason why such a declaration should not be made. A lien arises as a matter of law consequent upon the performance of his duties. Similarly, the Company has an equitable charge over the property of the Trust to secure the amounts payable to Trust creditors. 38 The usual order for costs is sought and that, too, should be made. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.

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