In the matter of Phoenix Rising Investments Pty Limited (ACN 123 623 754)

The case involves Phoenix Rising Investments Pty Limited, a company that was the subject of a winding up application. The dispute centred around the equitable remedies available in relation to accounts and inquiries, particularly regarding payments made out of trust, characterisation of payments, and entitlement to share in property. The case was heard in the Supreme Court of New South Wales.

The court was required to decide several key legal issues. Firstly, whether certain payments made by the company were treated as dividends and should be surcharged. Secondly, whether it was futile to require repayment of certain payments made after the appointment of a provisional liquidator, particularly where those payments were characterised as superannuation entitlements. Thirdly, whether a third defendant was entitled to a share in the property, including rents received and liability for expenses incurred. Finally, the court needed to determine whether the evidence was sufficient to establish that certain payments were actually made and claimable.

The court found that the payments in question were not treated as dividends and thus were not subject to surcharge. It was also determined that it was not futile to require repayment of certain payments made out of trust, despite their characterisation as superannuation entitlements. The third defendant was found to be entitled to a share in the property, including rents received. However, the court ruled that the third defendant was not entitled to allowances for reasonable expenses incurred in providing financial support to other companies in the group, as those expenses were not incurred in transactions in the property. The court concluded that the evidence provided was sufficient to establish the actual making of certain payments and their claimability.

The final orders of the court included a determination that the company was not liable for surcharge on the disputed payments, and that the third defendant was entitled to a proportionate share of the property, including rents received. The court also ordered that the third defendant was not entitled to allowances for expenses not related to transactions in the property.