In the matter of Direct FX Trading Pty Ltd (in liq) (No 2)

[2024] NSWSC 1079

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

In the matter of Direct FX Trading Pty Ltd (in liq) (No 2) [2024] NSWSC 1079

Hearing dates:

23 August 2024

Date of orders:

23 August 2024

Decision date:

23 August 2024

Jurisdiction:

Equity - Corporations List

Before:

Nixon J

Decision:

See [65]

Catchwords:

CORPORATIONS – winding up – application for directions under s 90-15 of IPSC and for judicial advice under s 63 of Trustee Act 1925 (NSW) – where fund held by liquidator represent moneys held on trust by company for 2,653 individual beneficiaries – where the majority of beneficiaries were owed relatively trivial amounts – where the costs of distributing the fund to all of the beneficiaries would exhaust the fund – whether liquidator justified in distributing fund to those beneficiaries with balances of over $100, on a pro rata basis – whether expenses of application and of distribution of funds should be paid from moneys held on trust

Legislation Cited:

Corporations Act 2001 (Cth), ss 981A, 981H

Trustee Act 1925 (NSW), s 63

Insolvency Practice Schedule (Corporations), ss 90-15, 90-20

Cases Cited:

Equititrust Ltd (in liq) (rec apptd) (recs and mgrs apptd) v Equititrust Ltd (in liq) (rec apptd) (recs and mgrs apptd) (No 4) [2017] FCA 1133

In the matter of AAA Financial Intelligence Ltd (in liq) ACN 093 616 445 [2014] NSWSC 1004
In the matter of BBY Limited (Receivers and Managers appointed) (in liquidation) (No 2) [2018] NSWSC 346

In the matter of Direct FX Trading Pty Ltd [2020] NSWSC 1338

Kelly (Liquidator), Halifax Investment Services Pty Ltd (in liquidation) v Loo [2021] FCA 531

Re BBY Ltd (recs and mgrs apptd) (in liq) (No 2) [2018] NSWSC 346

Re MF Global Australia Ltd (in liq) [2012] NSWSC 994

Re Montpac Pty Ltd (in liq) and Global Network Link Pty Ltd (in liq) [2020] NSWSC 1237

Category:

Principal judgment

Parties:

Jason Tracy and Vaughan Strawbridge in their capacity as liquidators of Direct FX Trading Pty Ltd (in liq) (First Plaintiff)
Direct FX Trading Pty Ltd (in liq) (Second Plaintiff)

Representation:

Counsel:
C Trahanas (Plaintiffs)

Solicitors:
K&L Gates (Plaintiffs)

File Number(s):

2020/152668

Publication restriction:

Nil

EX TEMPORE JUDGMENT – REVISED 26 AUGUST 2024

1. The First Plaintiff, Jason Tracy, is the liquidator (Liquidator) of the Second Plaintiff, Direct FX Trading Pty Ltd (in liq) (Direct FX).

2. By an Interlocutory Process dated 4 June 2024, the Plaintiffs seek directions and judicial advice in relation to the distribution of moneys held in an account by the Liquidator, which comprise moneys deposited by 2,653 individual clients of Direct FX. These moneys are referred to in this application as the Outstanding Client Balances, and the clients who deposited those moneys are referred to as the Identified Beneficiaries.

3. Only 74 of the Identified Beneficiaries have credit balances greater than $100.00. These 74 persons are referred to as the Proposed Beneficiaries.

4. In short, the Plaintiffs seek directions, and judicial advice, as to whether:

1. the Liquidator and Direct FX are justified in treating those Identified Beneficiaries who have a credit balance of less than A$100 (or some other amount and, if so, what amount) as having no right to participate in the distribution of funds by the Liquidator; and

2. the Liquidator and Direct FX are justified in distributing the Outstanding Client Balances to the 74 Proposed Beneficiaries on a pro rata basis.

5. The Plaintiffs also seek an order that the expenses associated with this application, including expenses associated with the distribution to the 74 Proposed Beneficiaries, are paid from the Outstanding Client Balances.

6. The application is made by the Liquidator under section 90-15 of the Insolvency Practice Schedule (Corporations) (IPSC) which is Schedule 2 to the Corporations Act 2001 (Cth) (the Act), and by Direct FX under s 63 of the Trustee Act 1925 (NSW).

7. The Plaintiffs rely on three affidavits of the Liquidator. The first, sworn 21 May 2020, describes Direct FX’s business and the investigations undertaken following his appointment; the second, sworn 4 June 2024, sets out the facts giving rise to this application; and the third, sworn 20 August 2024, addresses the steps taken to give notice of this application to interested persons.

8. None of the Identified Beneficiaries appeared at the hearing of the application, and none has communicated to the Liquidator any opposition to the proposed course of action.

Factual Background

9. Direct FX was incorporated in Western Australia on 14 June 2006.

10. Direct FX held an Australian Financial Services Licence, and operated an online financial services and currency exchange business through its website

11. Although Direct FX purported to offer its clients a broad range of over-the-counter financial products through this website, the business of Direct FX was primarily focused on facilitating the entry by retail clients into foreign exchange contracts and other contracts for difference with Direct FX over an electronic trading platform called MT4.

12. In around October 2016, Direct FX entered into a revenue sharing agreement with Core Liquidity Markets Pty Ltd (CLM). CLM is a financial services and foreign currency investment and trading company.

13. Pursuant to this revenue sharing agreement, Direct FX appointed CLM to act as its Corporate Authorised Representative, to carry out certain activities for Direct FX in Australia, including dealing in, and advising persons in relation to, authorised financial products.

14. The obligations of Direct FX under this agreement included the following:

“Direct FX Trading Pty Ltd will provide the Corporate Authorised Representative with client trust bank accounts at Commonwealth Bank … for the purposes of conducting operational business and holding client funds. The bank accounts will be in the name of the Corporate Authorised Representative under the Direct FX Trading Pty Ltd umbrella.”

15. The revenue sharing agreement also specified procedures to be performed by CLM. These included to check for any incoming deposits by bank wire, to check “all trust accounts (AUD, EUR, USD & GBP)”, to check sender details and the client’s account in the MT4 trading platform, and to proceed to enter the deposit for the amount received and to send the client a confirmation email.

16. On 6 April 2018, KPMG prepared, on behalf of Direct FX, a response to a notice which had been issued by the Australian Securities and Investments Commission in December 2017. In a section dealing with Direct FX’s structure and operations, KPMG reported as follows:

“We note [Direct FX] maintains a relationship with [CLM] as a corporate Authorised Representative. This relationship has been registered with ASIC. Through this relationship, CLM offers trading on the MT4 platform to other clients. We understand the legal relationship with those clients is with [Direct FX]. The associated trust bank accounts and client liabilities are accounted for by [Direct FX] and are included in the [Direct FX] NTA balances and client money reconciliations.”

17. In addition to the revenue sharing agreement, Direct FX and CLM also entered into various loan agreements.

18. On 11 October 2018, Mr Tracy and Mr Vaughan Strawbridge were appointed as liquidators of Direct FX. (Mr Strawbridge subsequently resigned from that role on 7 May 2021. Mr Tracy sought, and I will make, an order that the name of the First Plaintiff accordingly be amended.)

19. As at the date of the liquidators’ appointment, Direct FX held four bank accounts with the Commonwealth Bank of Australia which included the reference “Core Liquidity” in the name of the account. These accounts were in, respectively, Australian dollars, Euros, US dollars and British pounds.

20. Following the liquidators’ appointment, the moneys held in these four “Core Liquidity” accounts were transferred into accounts with the National Australia Bank, and were converted from their base currency into Australian dollars. The total balance of the four accounts as at the date of their conversion was A$694,115.

21. The liquidators formed the view, based on their investigations, that these accounts contained funds which had been paid by CLM to Direct FX. The liquidators’ report to creditors dated 11 January 2019 referred to the four “Core Liquidity” accounts, which had a total balance of $694,116, and included the following note:

“The amounts recovered from these bank accounts stem from a business relationship between CLM and the Company when CLM became a CAR [Corporate Authorised Representative] of the Company. CLM’s registration on the Company’s AFSL commenced on 16 December 2018. The Director of the Company and the director of CLM have both confirmed that the money has been paid into these accounts by CLM and is the Company’s property to cover the following liabilities of CLM to the Company:

•   The CAR Agreement that gave the Company a right to a share of profit from the CLM clients

•   To repay a loan of USD200k that the Company advanced to CLM

•   Outstanding client balances of the CLM referred clients. CLM has provided a list of outstanding client balances in the amount of c.$41k.

…

In regards to the third category of payments our initial view was that these would be considered operational to the extent that there was an excess of funds above the outstanding client trust claims of c.$41k. We conducted some detailed analysis which seemed to support this view.”

22. In May 2020, the liquidators applied in these proceedings for directions concerning monies and recoveries, totalling approximately A$269,000, which they considered to be client monies which fell within section 981A of the Act. On 1 October 2020, Black J gave directions that the liquidators were justified in pooling those moneys, and also ordered that the Plaintiffs’ costs of that application were properly incurred by the liquidators in the winding up of Direct FX and may be paid out of those moneys: In the matter of Direct FX Trading Pty Ltd [2020] NSWSC 1338.

23. The liquidators did not, at that time, seek any directions or advice regarding the distribution of the moneys identified in their report as the “outstanding client balances” that comprised part of the funds held in the four “Core Liquidity” accounts (the Outstanding Client Balances).

24. That was because the liquidators had formed the view at that time, as set out in the Liquidator’s affidavit of May 2020, that all of the funds held in the four “Core Liquidity” accounts were not client funds, as they were in operating accounts.

25. However, as a result of further investigations, the Liquidator has now formed the view that a portion of the funds held in the four “Core Liquidity” accounts (being the Outstanding Client Balances) are moneys owing to some 2,653 individual clients who were referred to Direct FX by CLM (referred to as the Identified Beneficiaries).

26. The Liquidator’s investigations have revealed that the total of the Outstanding Client Balances owed to the Identified Beneficiaries was A$43,205.60. The Liquidator separated those moneys from the other funds that had previously been held in the four “Core Liquidity” accounts and paid them into an interest-bearing account (the Outstanding Client Balances Account).

27. As at 15 August 2024, the balance of the Outstanding Client Balances Account was A$49,213.69.

28. The Liquidator set out the basis on which he formed the view that the Outstanding Client Balances represent moneys owing to the Identified Beneficiaries. In particular, the Liquidator has concluded, as a result of his investigations into the affairs of Direct FX, that the Identified Beneficiaries deposited moneys into an account or accounts held by CLM; that CLM then transferred those moneys into the “Core Liquidity” accounts held by Direct FX; and that no person, other than the Identified Beneficiaries, has established an entitlement to the Outstanding Client Balances.

29. I was provided with a complete list of the 2,653 Identified Beneficiaries and their balances, and with financial analysis in respect of this information. This analysis shows that:

1. 317 of the Identified Beneficiaries have an Outstanding Client Balance greater than $25;

2. 172 of the Identified Beneficiaries have an Outstanding Client Balance greater than A$50; and

3. 74 of the Identified Beneficiaries have an Outstanding Client Balance greater than A$100.

30. The Plaintiffs now seek directions and judicial advice that they would be justified in distributing the moneys in the Outstanding Client Balance Account to the 74 persons who have an Outstanding Client Balance greater than A$100, these being the “Proposed Beneficiaries”.

31. The Liquidator proposes this course on the basis that it is likely that the cost of distributing the Outstanding Client Balances to all of the 2,653 Identified Beneficiaries would exceed the available funds, because:

1. the Liquidator does not hold contact details for the Identified Beneficiaries, save for email addresses which were previously obtained from the Managing Director of CLM (which may not be correct or current); and

2. the Liquidator does not hold bank account details for any of the Identified Beneficiaries.

32. Accordingly, the Liquidator expects that he and his staff will be required to undertake the following activities, for each of the Identified Beneficiaries, in order to facilitate payment:

1. to provide each beneficiary with formal notice of any distribution;

2. to liaise with each beneficiary to request their bank account details, in order to process the distribution;

3. to attend to the confirmation of the bank account details; and

4. to provide confirmation of the completed distribution.

33. The difficulties in dealing with these matters, and the issue of proportionality, can be illustrated by some evidence given by the Liquidator regarding steps taken by him in order to give notice of this application to the Identified Beneficiaries. The Liquidator deposed that he was unable to give notice to 48 of the Identified Beneficiaries because he did not have any email or postal contact details for them. These 48 persons have a combined claim of $26.10, with the highest individual claim being $1.34.

34. Even if distribution is limited to the 74 Proposed Beneficiaries, the Liquidator estimates that, after allowing for the expenses of taking the steps outlined above for each of those beneficiaries, the remaining balance of the Outstanding Client Balances Account will be less than the claims of these 74 persons. For that reason, the Plaintiffs seek directions and judicial advice that they would be justified in distributing to the Proposed Beneficiaries on a pro rata basis.

35. The Liquidator does not seek to draw any remuneration in relation either to the making of this application or to the future distribution of the funds held in the Outstanding Client Balances Account. However, the Liquidator does seek an order that the expenses associated with this application and the distribution be paid from the Outstanding Client Balances. That order is sought in circumstances where, other than the Outstanding Client Balances Account, the only other funds available to the Liquidator from which expenses could be drawn is an account which was created for the purpose of holding and transacting certain general company funds of Direct FX, which has a current balance of A$3,609.60 (the Further Account).

36. As mentioned above, the Liquidator sent a notice in respect of this application to creditors of Direct FX, including all Identified Beneficiaries (other than those for whom he did not have any contact details).

37. As at the date of the hearing, the Liquidator had not received any objection from any creditor in relation to this application.

Relevant Principles

38. Section 90-15 of the ISPC provides that the Court “may make such orders as it thinks fit in relation to the external administration of a company”, including “an order determining any question arising in the external administration of the company”.

39. The Liquidator, as an officer of Direct FX, has standing to apply for a direction of s 90-15: see IPSC, s 90-20(1)(d); and s 9AD(1)(h) of the Act.

40. The principles relating to applications for directions under s 90-15 are conveniently summarised by Black J in Re Montpac Pty Ltd (in liq) and Global Network Link Pty Ltd (in liq) [2020] NSWSC 1237 at [8]:

“The Court’s power to give a direction under s 90-15 of the ISPC at least allows the Court to give a liquidator advice as to the proper course of action for him or her to take in a liquidation, and may give directions that provide guidance on matters of law and the reasonableness of a contemplated exercise of discretion, although it typically will not do so where a matter relates to the making and implementation of a business or commercial decision, where no particular legal issue is raised and there is no attack on the propriety or reasonableness of the decision. The power to give directions under this section is wider than its power to give such directions under former s 479(3) of the Act: Walley; Re Poles & Underground Pty Ltd (admins apptd) [2017] FCA 486 at [41]; Warner (liquidator), Re Sakr Bros Pty Ltd (in liq) [2019] FCA 547 at [18]; Re Go Energy Group Ltd [2019] NSWSC 558 at [16]; Re Plutus Payroll Australia Pty Ltd (in liq) [2019] NSWSC 1171 at [4]; Re RCR Tomlinson Ltd (admins apptd) [2020] NSWSC 735 at [6].”

41. Section 63 of the Trustee Act provides that a trustee “may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.”

42. In Montpac at [9], Black J noted that this provision permits relief aimed at resolving legitimate doubts held by a trustee as to the proper course of action. His Honour continued:

“In Re Australian Pipeline Ltd (2006) 60 ACSR 625; [2006] NSWSC 1316 at [17], Barrett J noted the role of such advice in providing guidance for the future and referred to Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 where Lord Oliver of Aylmerton observed that:

‘A trustee who is in genuine doubt about the propriety of any contemplated course of action in the exercise of his fiduciary duties and discretions is always entitled to seek proper professional advice and, if so advised, to protect his position by seeking the guidance of the court.’”

43. In Montpac at [11], Black J noted that the applicable principles regarding an application by a trustee for judicial advice were summarised by Jagot J in Equititrust Ltd (in liq) (rec apptd) (recs and mgrs apptd) v Equititrust Ltd (in liq) (rec apptd) (recs and mgrs apptd) (No 4) [2017] FCA 1133 at [7], as including the following:

“(1) the jurisdiction or power to give judicial advice is not constrained by any implications or limitations not found in the express words of the section; (2) the Court’s discretion is confined only by the subject matter, scope and purpose of the legislation, and there are no implied limitations on the discretionary factors that may arise or rules governing the relative importance of such factors; (3) the judicial advice procedure is intended to be summary in character; (4) a judicial advice application is in the nature of ‘private advice’ and a departure from usual Court proceedings in which there are multiple, adversarial parties and a person served with documents in respect of a judicial advice application is not thereby a ‘party’ to the application; (5) the right to obtain judicial advice protects the trustee, but it thereby also protects the interests of the trust, by enabling the trustee to act in the interests of the trust without fear of being personally liable for costs; (6) the function of the Court in a judicial advice application is to determine what should be done in the best interests of the trust; and (7) the usual form of order is that the trustee ‘would be justified’ in taking the relevant course of action.”

44. The Plaintiffs also drew attention to the following remarks of Brereton J in Re BBY Ltd (recs and mgrs apptd) (in liq) (No 2) [2018] NSWSC 346 (BBY (No 2)) at [40]:

“in a liquidator’s application for directions, courts often have to do ‘rough justice’ by reason of the limitations of the available evidence, in the light of what is reasonably practical and economical and judgments may be made on evidence much inferior to that which would be required to sustain a beneficiary’s claim in adversarial proceedings”.

45. Those observations have particular significance where, as here, there is a very modest sum of money held in trust, and a very large number of persons with claims upon it (such claims being, for the main part, in trivial amounts).

Orders regarding distribution of funds

46. Section 981A of the Act relevantly provides as follows:

Money to which Subdivision applies

(1)    This Subdivision applies (subject to subsections (2), (3) and (4)) to money paid to a financial services licensee (the licensee) in the following circumstances:

(a)    the money is paid in connection with:

(i)    a financial service that has been provided, or that will or may be provided, to a person (the client); or

(ii)    a financial product held by a person (the client); and

(b)    the money is paid:

(i)    by the client; or

(ii)    by a person acting on behalf of the client; or

(iii)    to the licensee in the licensee's capacity as a person acting on behalf of the client.

(2)    This Subdivision does not apply to money paid as mentioned in subsection (1) to the extent that:

(a)    the money is paid by way of remuneration payable to the licensee, or the licensee is entitled to deduct such remuneration from the money; or

(b)    the money is paid:

(i)    to reimburse the licensee for payments made to acquire, or acquire an increased interest in, a financial product; or

(ii)    to discharge a liability incurred by the licensee in respect of the acquisition of a financial product or an increased interest in a financial product, or to indemnify the licensee in respect of such a liability; or

(c)    the money is paid to acquire, or acquire an increased interest in, a financial product from the licensee, whether by way of issue or sale by the licensee; or

(ca)    the licensee is a licensed trustee company, and the money is paid to the licensee in connection with traditional trustee company services provided by the licensee; or

(d)    Subdivision B (loan money) applies to the money.

Note: Money excluded by paragraph (c) is covered by section 1017E.

(3)    If a person pays money to a financial services licensee in order for it to be deposited to the credit of a deposit product held by the person or another person with the licensee, that payment does not constitute money to which this Subdivision applies.

….

47. Section 981H(1) of the Act provides as follows:

Money to which Subdivision applies taken to be held in trust

(1)    Subject to subsection (3), money to which this Subdivision applies that is paid to the licensee:

(a)    by the client; or

(b)    by a person acting on behalf of the client; or

(c)    in the licensee's capacity as a person acting on behalf of the client;

is taken to be held in trust by the licensee for the benefit of the client.

48. The use of the term “on behalf of” in ss 981A and 981H is not limited to an agency relationship. For the purposes of the Act, the term “on behalf of” includes “on the instructions of”: s 9. In Re MF Global Australia Ltd (in liq) [2012] NSWSC 994 at [195]-[196], Black J made the following observations:

“Three Crowns' submission depends on reading ‘on behalf of’ in s 981B and s 981H as meaning ‘as agent for’ and I have accepted above that that is one meaning of that term. However, s 9 of the Corporations Act also defines ‘on behalf of’ in an inclusive manner, to include ‘on the instructions of’, and the term ‘on behalf of’ in s 981B and s 981H also has a wider meaning as a matter of its ordinary usage. That term can be used in conjunction with a range of relationships which relate to ‘the standing of one person as auxiliary to or representative of another person or thing’ and can also extend to a transaction undertaken by one person ‘for the benefit of and in the interest’ of another: R v Portus; Ex parte Federated Clerks Union of Australia [1949] HCA 53; (1949) 79 CLR 428 per Latham CJ at 435, per Dixon J at 438; R v Toohey; Ex parte Attorney-General (NT) [1980] HCA 2; (1980) 145 CLR 374 at 386; Securities Exchange Guarantee Corporation v Samuel Holdings above at [65]. In Securities Exchange Guarantee Corporation v Samuel Holdings above at [67], Chesterman JA observed that property is received ‘on behalf’ of another if it is received ‘on the instructions’ of that other; in circumstances where the dealer may apply the money only at the direction of the other person; or in circumstances where the dealer has an obligation to account to the other person for the money.

The terms of Pt 7.8 Div 2 Subdiv A also indicate that the concept of ‘on behalf of’ extends beyond agency, since s 981D refers to dealings ‘on behalf of’ people other than the client, although that section deals with derivative transactions which are generally, if not invariably, undertaken between parties trading as principal rather than on an agency basis. The reference to ‘on behalf of’ there cannot be limited to an agency relationship since otherwise it would have no or very limited application in the very kind of transaction to which the section is directed.”

49. The Outstanding Client Balances represent moneys which were paid to a licensee (namely, Direct FX).

50. I am satisfied, having regard to the available evidence and in particular the terms of the revenue sharing agreement between Direct FX and CLM, that those moneys were likely paid to Direct FX in connection with a financial service that was to be provided to a person (namely, an Identified Beneficiary): s 981A(1)(a).

51. Further, the evidence indicates that the Identified Beneficiaries deposited money into an account or accounts held by CLM, which was then transferred by CLM into an account held by Direct FX with the Commonwealth Bank. Those moneys were therefore likely paid to a licensee (Direct FX) by a person (CLM) who was acting on behalf of the clients (the Identified Beneficiaries): s 981A(1)(b).

52. The available evidence does not establish that any of the exclusions in s 981A(2) applies. The Plaintiffs drew the Court’s attention to s 981A(2)(c), which has the effect that the Subdivision does not apply where “the money is paid to acquire … a financial product from the licensee, whether by way of issue or sale by the licensee”. They noted that the phrase “paid to acquire” in that provision means “money paid by the client to the licensee on a final basis, in the nature of the purchase price for that product”: MF Global at [202] (Black J), applying BBY No 2 at [157]-[161] (Brereton J). The Plaintiffs acknowledged that the evidence does not disclose whether the money was paid by the Identified Beneficiaries in order to purchase a financial product from Direct FX. However, the Outstanding Client Balances do not appear to have been treated by either Direct FX or CLM, and have not been treated by the Liquidator, as falling within s 981A(2)(c) (and in that regard, I refer to the passage from the Liquidator’s report to creditors of January 2019 which is quoted at paragraph [21] above).

53. Having regard to:

1. the list of the balances of the individual Identified Beneficiaries, the vast majority of which are for very small amounts;

2. the Liquidator’s evidence of the steps required in order to distribute an amount to each Identified Beneficiary; and

3. the Liquidator’s estimate that the costs of such distribution would likely exceed the available sums;

I have formed the view that the Liquidator would be justified in taking the course proposed. That is, the Liquidator would be justified in distributing the Outstanding Client Balances to the 74 Proposed Beneficiaries, and to none of the other Identified Beneficiaries.

54. I note that a similar course was adopted in comparable circumstances in BBY No 2 and in Kelly (Liquidator), Halifax Investment Services Pty Ltd (In Liq) v Loo [2021] FCA 531 (Markovic J) (Kelly v Loo).

55. In Re BBY No 2 at [393]-[397], Brereton J concluded, and gave a direction, that the liquidators would be justified in treating those clients with a balance of $100 or less as having no entitlement to participate in the funds in issue. His Honour commented (at [396]) that:

“Such a direction gives pragmatic effect to the reality that the costs to the administration (and thus creditors generally) associated with administering a claim for the amount specified are disproportionate to the benefit to the claimant.”

56. Similarly, in Kelly v Loo, Markovic J concluded, and made a direction, that the liquidators would be justified in disregarding account balances which were under $100, in circumstances where the “steps to be taken vis a vis those clients do not differ from those to be taken in relation to clients with higher account balances”, and “the costs associated with distributing funds to each client with an account balance of less than AUD100 will considerably exceed those clients’ account balances” (at [394]).

57. Her Honour referred to, and adopted, the remarks of Brereton J in BBY (No 2) which I have quoted above, stating (at [398]):

“The same can be said in this case. That is, making the directions sought by the Liquidators in relation to accounts where balances are less than AUD100 will give effect to the reality that the costs associated with administering claims in relation to those accounts will exceed and are disproportionate to any benefit to the claimants.”

58. Those observations apply with equal, if not greater, force here. The Liquidator’s evidence establishes that the costs associated with administering the claims of all of the Identified Beneficiaries would exhaust the whole of the available funds, leading to a situation where no Identified Beneficiary received any amount in respect of their claim. The Liquidator’s proposed course ensures that those Identified Beneficiaries with a significant balance (of greater than A$100) will achieve a substantial return in respect of their claims.

59. Finally, it is significant that the Liquidator has notified creditors of the proposed orders, including all of the Identified Beneficiaries for whom he had contact details, and none has expressed any opposition to the relief sought or the Liquidator’s proposed course of action.

60. For those reasons, I will make the directions and give the advice sought by the Liquidator.

Application in respect of expenses of application and distribution

61. The Liquidator sought an order that the expenses of this application and the expenses of distributing the Outstanding Client Balances to the Proposed Beneficiaries be paid out of the Outstanding Client Balances.

62. As I have noted above, other than the Outstanding Client Balances Account and the Further Account (which has a balance of $3,609.60), there are no other moneys available to the Liquidator in order to fund those expenses.

63. The appliable principles were stated as follows by Brereton J in In the matter of AAA Financial Intelligence Ltd (in liq) ACN 093 616 445 [2014] NSWSC 1004 at [13(2)-(3)]:

“Where the company does not act solely as trustee, costs and expenses referable to work done in relation to trust assets which may nonetheless be considered as having been done for the purpose of winding up the company ought ordinarily be borne primarily by the (non-trust) property of the company, to the extent that the assets permit [Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 685-689; Re Greater West Insurance Brokers Pty Ltd [2001] NSWSC 825; (2001) 39 ACSR 301; French Caledonia, [209]].

At least where the non-trust assets do not permit that course, and perhaps even when they do, a liquidator is entitled to be indemnified out of trust assets for his costs and expenses, but only to the extent that they are referable to administering the trust assets [13 Coromandel Place Pty Ltd v CL Custodians Pty Ltd (in liq) (1999) 30 ACSR 377, 385; French Caledonia, [211], [213]. This is pursuant to the court's equitable jurisdiction to allow a trustee remuneration costs and expenses out of trust assets, which extends to a person such as a liquidator who is, for practical purposes, controlling a trustee [Berkeley Applegate (Investment Consultants) Ltd; Harris v Conway [1989] Ch 32, 50-51; Re Application of Sutherland [2004] NSWSC 798; (2004) 50 ACSR 297; Trio Capital Ltd (Admin App) v ACT Superannuation Management Pty Ltd [2010] NSWSC 941; (2010) 79 ACSR 425; In re MF Global Australia Ltd (in liq) (No 2) [2012] NSWSC 1426, [55]; Alphena Pty Ltd (in liq) v PS Securities Pty Ltd atf Joseph Family Trust [2013] NSWSC 447; (2013) 94 ACSR 160].”

64. I am satisfied that the order sought by the Liquidator is appropriate, having regard to the following matters:

1. there is evidence that the Liquidator’s expenses of this application and of distributing the Outstanding Client Balances to the Proposed Beneficiaries are likely to exceed the total of:

1. the amount of $3,609.60 in the Further Account; and

2. the difference between the balance of the Outstanding Client Balances Account and the value of the Outstanding Client Balances;

2. the Liquidator is seeking to be paid expenses solely referrable to work done in relation to administering trust assets – namely, the Outstanding Client Balances – from those trust assets; and

3. the Liquidator is not seeking to draw any remuneration in respect of this application or the distribution from the Outstanding Client Balances Account.

ORDERs

65. For those reasons, I make the following orders.

1. Order that the name of the First Plaintiff be changed to “Jason Tracy in his capacity as liquidator of Direct FX Trading Pty Ltd (in liquidation) ACN 120 189 424”.

2. The Plaintiffs are justified in treating the Identified Beneficiaries (as that term is defined in the affidavit of the First Plaintiff sworn 4 June 2024) who have a credit balance of less than AU$100 as having no right to participate in the distribution of funds by the First Plaintiff.

3. The Plaintiffs are justified in distributing the Outstanding Client Balances (as that term is defined in the Affidavit) on a pro rata basis to the 74 Proposed Beneficiaries (as that term is defined in the Affidavit).

4. Order that the expenses associated with this application including expenses associated with the distribution to the 74 Proposed Beneficiaries are paid from the Outstanding Client Balances.

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Amendments

03 September 2024 - Solicitor details corrected

Decision last updated: 03 September 2024