Barilla & Barilla (No 6)

[2023] FedCFamC1F 1002

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Barilla & Barilla (No 6) [2023] FedCFamC1F 1002

File number(s):

CAC 1604 of 2018

Judgment of:

GILL J

Date of judgment:

22 November 2023

Catchwords:

 FAMILY LAW – PROPERTY – Liquidator appointed for corporate trustee – Oral application by the liquidator for relief pursuant to s 63 Trustee Act 1925 – Similarity with the Insolvency Rules – Not clear whether creditors and trustees are wholly overlapping – Where the application is made on the day of the proceedings – Leave refused

Legislation:

Corporations Act 2001 (Cth)

Insolvency Practice Rules (Corporations) 2016

Trustee Act 1925 (ACT) – s 63

Division:

Division 1 First Instance

Number of paragraphs:

4

Date of hearing:

22 November 2023

Place:

Canberra

Solicitor for the Applicant:

Ms Fox, Farrar Gesini Dunn

Solicitor for the Respondent:

Litigant in person

Counsel for the Intervener:

Mr Blank

Solicitor for the Intervener:

Parker Coles Curtis

ORDERS

CAC 1604 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BARILLA

Applicant

AND:

MS BARILLA

Respondent

MR MARRIOTT (LIQUIDATOR FOR B PTY LTD)

Intervener

ORDER MADE BY:	GILL J
DATE OF ORDER:	22 NOVEMBER 2023

THE COURT ORDERS THAT:

1.Leave to seek relief pursuant to s 63 of the Trustee Act 1925 (ACT) is refused.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. In this matter the liquidator seeks leave to make an oral application to seek relief pursuant to s 63 of the Trustee Act 1925 (ACT) and to attain, pursuant to that provision, directions giving approval for the resolution of claims. That was not a form of relief that was being sought in the application in the proceedings filed by the liquidator, which has now been set down for a number of months for today for resolution. The setting down of those matters for resolution required the liquidator to place the various creditors on notice, including of the relief sought under the Corporations Act 2001 (Cth), such that they might be in a position today to deal with the substantive hearing for the relief sought by the liquidator.

2. While the liquidator says that relief pursuant to s 63 of the Trustee Act is analogous to the relief that he seeks pursuant to the Insolvency Practice Schedule (Corporations) 2016, I am not persuaded that it is sufficiently analogous to mean that adding it to the proceedings at this point is without prejudice or without adding difficulty to the proceedings that are now partway through their resolution.

3. The Insolvency Practice Schedule appears directed to giving directions and approvals to the liquidator primarily in respect of the creditors and thereby giving the liquidator some protection in respect of creditors. The advice provisions in the Trustee Act 1925 appear more to relate to the protection of the trustee from claims in relation to beneficiaries. It is not clear in these proceedings whether or not the creditors and the beneficiaries are wholly overlapping sets of persons. To add to the current proceedings which deal with giving directions to the liquidator on the basis of corporation’s obligations, a consideration of the liquidator’s relationship as corporate trustee to the beneficiaries adds new complexity, new considerations of relief and should not be permitted at this late stage of the proceedings.

4. I refuse leave.

I certify that the preceding four (4) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       22 November 2023