IN THE MATTER of LES DENNY PTY LTD (IN LIQ) (ACN 156 618 825); MARY PITARD PTY LTD (IN LIQ) (ACN 608 289 792); PITARD KNOWLES NO 3 PTY LTD (IN LIQ) (ACN 606 901 295); PITARD KNOWLES NO 5 PTY LTD (IN LIQ) (ACN 609 767 615)
BETWEEN:
STEWART ALEXANDER McCALLUM in his capacity as joint and several liquidator of LES DENNY PTY LTD (IN LIQ) (ACN 156 618 825), MARY PITARD PTY LTD (IN LIQ) (ACN 608 289 792), PITARD KNOWLES NO 3 PTY LTD (IN LIQ) (ACN 606 901 295) and PITARD KNOWLES NO 5 PTY LTD (IN LIQ) (ACN 609 767 615) & ORS (according to the schedule)
Plaintiffs
v
PITARD CONSORTIUM PTY LTD (ACN 634 588 980) in its capacity as trustee for the PITARD TRUST) (ABN 23 359 983 098) & ORS (according to the schedule)
Defendants
---
JUDGE:
M Osborne J
WHERE HELD:
Melbourne
DATE OF HEARING:
26 February 2021, 19 April 2021; further written submissions received 28 April 2021 (Plaintiffs); 4 May 2021 (Defendants); 25 May 2021 (Plaintiffs)
[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.
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AGLC
McCallum v Pitard Consortium [2021] VSC 369
Case
[2021] VSC 369
Decision Date
CaseChat Overview and Summary
McCallum v Pitard Consortium involved a dispute over a trust, with the former trustee, now in liquidation, seeking to exercise a power of sale pursuant to a right of indemnity. The liquidators of the former trustee sought authorisation to apply trust assets to the expenses of liquidation. The case was heard in the Supreme Court of Western Australia. The key issue was whether the parties were accounting parties for the purposes of an order for account, and whether the liquidators could apply for a general order for sale.
The court examined whether the former trustee and the liquidators were accounting parties, which would allow them to seek an order for account. The court found that the liquidators were not accounting parties, but the former trustee was. The court also considered whether the liquidators could apply for a general order for sale under Order 54.02 of the Supreme Court (General Civil Procedure) 2015. The court held that the liquidators could apply for such an order, but only if the former trustee was an accounting party.
The court granted the liquidators' application for a general order for sale, finding that the former trustee was an accounting party. The court noted that the liquidators were entitled to apply trust assets to the expenses of liquidation, but only if the former trustee was an accounting party. The court also noted that the liquidators were entitled to seek a general order for sale if the former trustee was an accounting party.
The court made orders that the liquidators could apply trust assets to the expenses of liquidation and could apply for a general order for sale. The court also made orders that the liquidators were entitled to seek discovery and verification of trust assets. The court further made orders that the liquidators were entitled to seek an order for account against the former trustee, if necessary.