Collie v Merlaw Nominees Pty Ltd (No 2)

The case of Collie v Merlaw Nominees Pty Ltd (No 2) involved a dispute concerning the appointment of a receiver for trust assets and the role of the liquidator in this context. The matter was heard in the Supreme Court of Queensland. The plaintiffs, Collie, sought the appointment of a receiver over certain trust assets, specifically a property, held by the defendant, Merlaw Nominees Pty Ltd. The defendant argued against the appointment of a receiver and sought costs on a solicitor-client basis, along with statutory interest, as it was already in possession of the property as a mortgagee.

The legal issues before the court were whether the liquidator of the trust was suitable to act as the receiver of the trust assets and whether the creditor of the trust, in this case, Collie, could seek the appointment of a receiver when the mortgagee was already in possession of the property. Additionally, the court had to determine whether the creditor had to provide notice to the mortgagee in possession before seeking the appointment of a receiver.

The court found that the liquidator was not suitable to act as the receiver because it was necessary for the receiver to be independent of the trustee in liquidation. The court held that the creditor could seek the appointment of a receiver even if the mortgagee was already in possession of the property. However, the court ruled that the creditor must provide notice to the mortgagee in possession before seeking the appointment of a receiver. The court granted Collie's application for the appointment of a receiver and ordered that the liquidator not be appointed as the receiver. The court also awarded costs to Collie on a solicitor-client basis and directed that statutory interest be paid on the amount owing.

In summary, the court upheld Collie's application for the appointment of a receiver, found that notice to the mortgagee in possession was necessary, and granted Collie's costs on a solicitor-client basis with statutory interest.