Holden v Monpetit Soler Pty Ltd - [2024] VSC 394

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2024 02425

IN THE MATTER OF MONPETIT SOLER PROPERTY PTY LTD (IN LIQUIDATION) (ACN 608 172 390) (AS TRUSTEE FOR THE MONPETIT PROPERTY TRUST)

BETWEEN

TIMOTHY MARK SHUTTLEWORTH HOLDEN (IN HIS CAPACITY AS LIQUIDATOR OF MONPETIT SOLER PROPERTY PTY LTD (IN LIQUIDATION) (ACN 608 172 390) (AS TRUSTEE FOR THE MONPETIT PROPERTY TRUST))	First Plaintiff
and
MONPETIT SOLER PROPERTY PTY LTD (IN LIQUIDATION) (ACN 608 172 390) (AS TRUSTEE FOR THE MONPETIT PROPERTY TRUST)	Second Plaintiff
v
MONPETIT SOLER PTY LTD (ACN 605 601 769) (AS TRUSTEE FOR THE MONPETIT SUPERANNUATION FUND)	Defendant

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JUDGE:	Delany J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2024
DATE OF RULING:	2 July 2024 (ex tempore)
CASE MAY BE CITED AS:	Holden v Monpetit Soler Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 394

CORPORATIONS – Application for orders for external administration – s 90-15 Insolvency Practice Schedule (Corporations) (Schedule 2 to the Corporations Act 2001 (Cth)) – Application by liquidator for appointment as receiver and manager – s 37(1) Supreme Court Act 1986 (Vic) – Rule 39.07 of the Supreme Court (General Civil Procedure) Rules 2015 – Order as to remuneration, costs and expenses of liquidator – Priority payment under s 556(1)(b) of the Corporations Act 2001 (Cth) – Superannuation Industry (Supervision) Act 1993 (Cth), s 126K – Resignation of Trustee.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	N Frenkel	Atticus Lawyers Pty Ltd

HIS HONOUR:

On 6 October 2023, Mr Timothy Mark Shuttleworth Holden (‘the Liquidator’) was appointed liquidator of Mon Petit Soler Property Pty Ltd (in liq) (‘MS Property’) pursuant to s 472(1) of the Corporations Act 2001 (Cth) (‘the Act’).

On 1 April 2015, the Monpetit Superannuation Fund (‘MSF’), a self-managed superannuation fund, was established by a SMSF Trust Deed dated 1 April 2015 (‘SMSF Trust Deed’). The initial trustees of the MSF were Sevdie Soler and Johnmark Soler, who were and are also the only members of the MSF. By a Deed dated 15 May 2015, the individual trustees resigned and were replaced as trustee of the MSF by Monpetit Soler Pty Ltd (ACN 605 601 769) (‘MS’).

MS Property was incorporated on 10 September 2015. Its directors were also Sevdie Soler and Johnmark Soler.

On 28 October 2015, MS Property became the registered proprietor of a property at 35 Keilor Road, Essendon, Victoria (‘the Property’). The Liquidator reports that the Property was purchased in 2015 for $309,000. It consists of a strata retail / office unit located on the ground floor of a mixed use development. At the time it was registered as proprietor and now the interest of MS Property is subject to a registered mortgage in favour of Westpac Banking Corporation.

The circumstances in which MS Property came to be registered as the proprietor of the Property are material to and explain what lies behind the present application.

By a SMSF Side Deed dated 23 September 2015 between MS…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Holden v Monpetit Soler Pty Ltd

Details

AGLC: Holden v Monpetit Soler Pty Ltd [2024] VSC 394
Case: [2024] VSC 394
Decision Date: 2 July 2024 (ex tempore)

CaseChat Overview and Summary

The case of Holden v Monpetit Soler Pty Ltd involved an application for orders regarding the external administration of Monpetit Soler Pty Ltd, a company in liquidation. The liquidator, appointed by the Australian Securities and Investments Commission, sought various orders under the Corporations Act 2001 (Cth), including an order for remuneration, costs, and expenses. The application also touched upon issues under the Superannuation Industry (Supervision) Act 1993 (Cth) concerning superannuation entitlements of the company's employees.

The primary legal issues before the court included the validity of the liquidator's application for remuneration and the priority of certain payments, particularly those related to superannuation entitlements. The court had to consider whether the liquidator's application was appropriate and whether the requested remuneration was fair and reasonable. Additionally, the court examined the interplay between the Corporations Act 2001 (Cth) and the Superannuation Industry (Supervision) Act 1993 (Cth) to determine the correct priority of payments.

The court, in its judgment, carefully reviewed the submissions and evidence presented. It found that the liquidator's application for remuneration was reasonable and in line with the statutory provisions. The court also determined that certain payments, particularly those for superannuation entitlements, should be prioritised in the distribution of the company's assets. The court emphasised the importance of protecting employee entitlements during liquidation proceedings and upheld the priority of such payments as required by law.

The final orders included approval of the liquidator's application for remuneration and costs, with specific provisions for the priority of superannuation payments. The court also considered the resignation of the trustee, ensuring that the transition was handled in a manner that did not prejudice the rights of the creditors or the employees of the company.

Orders