JT & CV Pty Ltd v Vaspak Pty Ltd - [2024] VSC 819

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2024 01112

JT & CV PTY LTD (ACN 628 925 664) IN ITS CAPACITY AS TRUSTEE FOR THE JT & CV WEST SUPER FUND	Plaintiff
v
VASPAK PTY LTD (ACN 078 460 134) IN ITS CAPACITY AS TRUSTEE FOR THE WEST UNIT TRUST	First Defendant
- and -
TAYLOR SPLATT & PARTNERS (ABN 85 284 756 182)	Second Defendant

---

JUDGE:	SLOSS J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2024
DATE OF JUDGMENT:	9 December 2024 (ex tempore) (revised)
CASE MAY BE CITED AS:	JT & CV Pty Ltd v Vaspak Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 819

---

CORPORATIONS – Application for appointment of receiver pursuant to s 37(1) of the Supreme Court Act 1986 and r 39.02 or r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, alternatively for the appointment of a replacement trustee pursuant to s 48 of the Trustee Act 1958 (Vic) − Ongoing deadlock within corporate trustee constraining the ability of corporate trustee to make decisions – Where ongoing deadlock and resultant failure to release trust funds is causing loss to beneficiaries of the trust – Where just and convenient that a receiver be appointed to distribute the trust funds and for the trust then to be wound up.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G Douglas	Macpherson Kelley
No appearance by or on behalf of the defendants

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 4

West Family Dispute.................................................................................................................... 4
The West Unit Trust...................................................................................................................... 5
West Family Trust......................................................................................................................... 6
West Family Superannuation Fund........................................................................................... 6
West Unit Trust holdings between 2015 and 2018................................................................... 7
Rollout of Jeremy & Charlotte West from West Family Superannuation Fund – November 2018................................................................................................................................................ 8
Ongoing dispute – trustee’s failure to distribute funds from the sale of 11 Elite Way.... 10
Status of West Unit Trust funds held by Taylor Splatt for benefit of West Unit Trust.... 12
The West Unit Trust Deed......................................................................................................... 14

Relevant principles.......................................................................................................................... 15

Plaintiff’s submissions................................................................................................................... 17

Consideration and disposition...................................................................................................... 21

Whether to appoint receiver or alternative trustee................................................................ 21
Consent of receiver..................................................................................................................... 25
Whether receiver is to provide security................................................................................... 26

Conclusion......................................................................................................................................... 26

Orders................................................................................................................................................. 27

HER HONOUR:

Introduction

This proceeding is brought by the plaintiff, JT & CV Pty Ltd (ACN 628 925 664)
(JT & CV) in its capacity as trustee for the JT & CV West Super Fund. The directors of JT & CV are Ms Charlotte West and her husband, Mr Jeremy West.

The first defendant is Vaspak Pty Ltd (ACN 078 460 134) (Vaspak), in its capacity as trustee for the West Unit Trust. At all relevant times, there were four directors of Vaspak, being:

(a) Ms Charlotte West;

(b) Mr Jeremy West;

(c) Mr Daniel West (the brother of Mr Jeremy West); and

(d) Ms Joanne West (the wife of Mr Daniel West).

Each of Charlotte, Jeremy, Daniel and Joanne West was an (equal) shareholder…

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.

Keep reading for free

Create a free CaseChat account to read JT & CV Pty Ltd v Vaspak Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] VSC 819
Decision Date: 9 December 2024 (ex tempore) (revised)

CaseChat Overview and Summary

JT & CV Pty Ltd brought an application against Vaspak Pty Ltd, seeking the appointment of a receiver to manage the assets of a trust, or alternatively, the appointment of a replacement trustee, due to an ongoing deadlock within the corporate trustee. The deadlock was preventing the release of trust funds, causing detriment to the beneficiaries. The application was made to the Supreme Court of Victoria.

The central legal issues the court had to address were whether the deadlock within the corporate trustee was such that it was just and convenient for a receiver to be appointed to distribute the trust funds and wind up the trust. The court also needed to consider the alternative of appointing a replacement trustee if the deadlock could not be resolved by the appointment of a receiver.

The court found that the deadlock was indeed ongoing and that the inability to release the trust funds was causing significant loss to the beneficiaries. The court held that the appointment of a receiver was just and convenient under the circumstances, as it would enable the trust to be wound up and the funds distributed. The court declined to appoint a replacement trustee under the Trustee Act, finding that the deadlock could not be resolved in that manner. Consequently, the court ordered the appointment of a receiver to manage the trust assets and wind up the trust.

The final order was for the appointment of a receiver to manage the trust assets and wind up the trust, thereby allowing the distribution of the trust funds to the beneficiaries.

Orders