In the Matter of F45 Total Fitness Pty Ltd (in Liquidation); Ex Parte
[2024] WASC 94
•26 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IN THE MATTER OF F45 TOTAL FITNESS PTY LTD (IN LIQUIDATION); EX PARTE ROSS STEPHEN THOMSON as liquidator of F45 TOTAL FITNESS PTY LTD (IN LIQUIDATION) [2024] WASC 94
CORAM: HILL J
HEARD: ON THE PAPERS
DELIVERED : 7 MARCH 2024
PUBLISHED : 26 MARCH 2024
FILE NO/S: COR 24 of 2024
MATTER: IN THE MATTER OF F45 TOTAL FITNESS PTY LTD (IN LIQUIDATION)
EX PARTE
ROSS STEPHEN THOMSON as liquidator of F45 TOTAL FITNESS PTY LTD (IN LIQUIDATION)
First Plaintiff
F45 TOTAL FITNESS PTY LTD (IN LIQUIDATION)
Second Plaintiff
Catchwords:
Corporations - External administration - Winding up - Where company in liquidation is bare trustee - Application for appointment of liquidator as receiver and manager of trust property - Turns on own facts
Legislation:
Corporations Act 2001 (Cth) s 420, s 477(2), s 556
Insolvency Practice Schedule (Corporations) (sch 2 to the Corporations Act 2001) (Cth) s 90-15
Rules of the Supreme Court 1971 (WA) O 51 r 1
Supreme Court Act 1935 (WA) s 25(9)
Result:
Application granted
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
Solicitors:
| First Plaintiff | : | Edwards Mac Scovell Legal |
| Second Plaintiff | : | Edwards Mac Scovell Legal |
Cases referred to in decision:
Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524
Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677
Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310
Re Hercules Car Parking Systems (Victoria) Pty Ltd [2018] NSWSC 409
Re Mecfab Holdings Pty Ltd [2015] NSWSC 46
HILL J:
On 15 November 2023, the first plaintiff, Ross Stephen Thomson, was appointed as liquidator of the second plaintiff, F45 Total Fitness Pty Ltd (Liquidator). Prior to the appointment of Mr Thomson as liquidator, F45 Total Fitness Pty Ltd (Company) was the trustee of the F45 Total Unit Trust (Trust).
On 27 February 2024, the plaintiffs filed an originating process in this Court seeking, among other things, orders that the Liquidator:
(a)be appointed as receiver and manager of the assets of the Trust;
(b)in acting as receiver, have the powers under s 420 of the Corporations Act 2001 (Cth) (Act), as if the reference to 'corporation' in that section was a reference to the Trust;
(c)have the powers under s 477(2) of the Corporations Act 2001 (Cth) that a liquidator has in respect of property of a company (in its role as legal owner and trustee);
(d)in acting as receiver, have the powers under s 556 of the Corporations Act 2001 (Cth), to effect the sale of the Trust property;
(e)is justified and acting reasonably in proceeding on the basis that the Company carried on business solely in its capacity as trustee of the trust, all assets of the Company are properly characterised as properly held by the Company in its capacity as trustee of the Trust, and all the creditors of the Company are creditors of the Trust.
The originating process was initially listed for hearing on 8 March 2024. On 6 March 2024, the solicitors for the plaintiffs requested the matter be dealt with on the papers and the hearing vacated. For this reason, on 7 March 2024, I made orders in terms of the originating process subject to two minor amendments. These are my reasons for making these orders.
Factual background
The plaintiffs filed two affidavits in support of their application: an affidavit of the first plaintiff filed 21 February 2024 and an affidavit of service of Charmaine Ruth James filed 6 March 2024. This summary is taken from these affidavits.
The Company was incorporated on 22 June 2016.[1] A current and historical company extract obtained from the records of ASIC discloses that the sole director and shareholder of the Company is Colin Brian Martin.
[1] Affidavit of Ross Stephen Thomson filed 21 February 2024 [7].
On 15 November 2023, Mr Martin, as sole shareholder of the Company, passed a resolution to voluntarily wind up the Company and appoint the first plaintiff as liquidator pursuant to s 491 of the Corporations Act 2001 (Cth).[2]
[2] Affidavit of Ross Stephen Thomson filed 21 February 2024 [5].
Based on the enquires undertaken to date, the first plaintiff believes:[3]
(a)the Company was the trustee of the Trust;
(b)the Company did not operate any business or conduct any activities in any capacity other than as trustee of the Trust, including in its own right; and
(c)the Company did not act as trustee of any other trust and does not own any assets in its own right or as trustee of any other trust.
[3] Affidavit of Ross Stephen Thomson filed 21 February 2024 [20].
Among the books and records of the Company is a copy of the Trust deed. The Trust deed discloses that the Trust was established on 22 June 2016.[4] Pursuant to cl 6.4(a)(2) of the Trust deed, on the appointment of a liquidator, the Company was required to retire as trustee of the Trust and was disqualified from acting as trustee.
[4] Affidavit of Ross Stephen Thomson filed 21 February 2024, 'RST3'.
Service of application
I am satisfied that ASIC has been served with copies of the originating process and the affidavit of Ross Stephen Thomson,[5] as required by r 2.8 of the Supreme Court (Corporations) Rules 2004 (WA).
[5] Affidavit of service of Charmaine Ruth James filed 6 March 2024.
No one gave notice to the plaintiffs' solicitors or to the court that they wish to be heard on the application.
Legal principles for appointment of receiver
The legal principles that govern this application are well known and can be summarised as follows.
Where a corporate trustee enters external administration, the company's right of indemnity and accompanying equitable lien over the assets of the trust survives the appointment. Where a company has been removed as trustee of the trust by reason of the terms of the trust deed, the company retains the right to holds trust assets as bare trustee. However, the liquidator of the company does not have the power to sell those assets to satisfy that indemnity absent intervention by the court.[6]
[6] See Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq)[2018] FCAFC 40; (2018) 260 FCR 310 [44], [85] ‑ [91] (Allsop CJ), [139], [142] (Siopis J) and [198] (Farrell J); Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 [22]-[28] (Gordon J).
The liquidator, in essence, has two options. First, to apply for an order that confers power on the liquidator to deal with the assets of the trust or, second, to apply to be appointed as receiver and manager of the trust.
In this case, the first plaintiff seeks to be appointed as receiver and manager of the Trust and also seeks orders under s 90‑15 of the Insolvency Practice Schedule (Corporations) (sch 2, Corporations Act 2001 (Cth)) (Insolvency Practice Schedule) to facilitate their dealing with the assets of the Company to enable the winding up of the Company and the Trust to proceed.
Section 90-15(1) of the Insolvency Practice Schedule provides that the court may make 'such orders as it thinks fit in relation to the external administration of a company'. The power is broad and is at least as extensive as the powers formerly available under s 479(3) and s 511 of the Act.
Courts are generally willing, upon an appropriate application, to make orders permitting the liquidator of a (former) corporate trustee to sell trust assets.
Order 51 r 1 of the Rules of the Supreme Court 1971 (WA) deals with the court's power to appoint a receiver. The court also has power, pursuant to s 25(9) of the Supreme Court Act 1935 (WA), to appoint a receiver where it appears to be just and convenient. Orders may be made nunc pro tunc to authorise any sale of assets that have already occurred.[7]
[7] Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [91], [152], [198].
In the absence of any relevant conflict, it is commonly the case that the court will appoint the liquidator of the corporate trustee as receiver without security.[8]
[8] Re Hercules Car Parking Systems (Victoria) Pty Ltd [2018] NSWSC 409 (Brereton J).
Appointing a liquidator or administrator of a corporate trustee as a receiver of a trust's assets facilitates and simplifies the external administration of the corporate trustee by providing for the trust's business and assets to be under the same control as the corporate trustee while it is in external administration. This aids in the vindication of the trustee company's right of indemnity out of the trust's assets.[9]
[9] Re Mecfab Holdings Pty Ltd [2015] NSWSC 46 [9].
Once the sale of the trust's assets has occurred, the proceeds may be appropriated by way of exoneration as part of the conduct of the liquidation in accordance with the statutory priorities set out in pt 5.6, div 6 of the Act.[10] This includes the costs of the liquidation.
[10] Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 [55] - [58] (Kiefel CJ, Keane & Edelman JJ), [95] - [97] (Bell, Gageler & Nettle JJ), [171] (Gordon J).
Disposition
On the evidence before me, I accept that by reason of cl 6.4(a)(2) of the Trust deed, on the appointment of Mr Thomson as Liquidator, the Company was required to retire as trustee of the Trust and was immediately disqualified from acting as trustee. As a consequence, the Company is now a bare trustee of the Trust's assets and does not have the power to sell or otherwise deal with the assets of the Trust. No new trustee has been appointed.
I am satisfied that the Company only acted as trustee of the Trust and in no other capacity, and that all Trust assets held by the Company were held in its capacity as trustee of the Trust.
The orders sought by the plaintiffs are consistent with the legal principles that I have outlined above.
Given the evidence before the court, I accept that it is expedient for Mr Thomson to have the power to sell the property of the Trust and that orders be made nunc pro tunc from the time of her appointment as Liquidator.
I also accept it is appropriate to appoint Mr Thomson as receiver and manager of the Trust without security. This is in accordance with the legal principles outlined above and will protect the Company's right of indemnity, as well as the position of creditors. Other advantages with the proposal include that the first plaintiff is subject to the regulatory regime applicable to insolvency practitioners, she has professional indemnity insurance and is subject to the continued supervision of the court.
The form of orders sought in terms of service of the court's orders and the allowance for any aggrieved party to apply to this court to vacate or vary these orders protects the creditors of the Company from any possible prejudice that might otherwise arise from this application.
In relation to the orders sought under s 90-15 of the Insolvency Practice Schedule, I accept Mr Thomson's evidence that the Company has acquired assets and incurred liabilities only as trustee of the Trust. For this reason, it is appropriate to make orders that the first plaintiff will be acting properly and is justified in proceeding to conduct the affairs of the Trust on the basis that the business and assets of the Company comprised the assets of the Trust.
Finally, in relation to the costs of the application, the plaintiffs sought orders for the costs of the application be costs in the winding up of the second plaintiff and otherwise be paid from the Trust property. In my view, this is the appropriate costs order.
Conclusion
For these reasons, I was satisfied it was appropriate to make the orders which are annexed to these reasons marked 'Annexure A'.
Annexure A
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JN
Associate to the Honourable Justice Hill
26 MARCH 2024
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