Northern Premium Funding Pty Ltd - [2011] QSC 265

SUPREME COURT OF QUEENSLAND

CITATION:

Re Northern Premium Funding Pty Ltd [2011] QSC 265

PARTIES:

IN THE MATTER OF NORTHERN PREMIUM FUNDING PTY LTD
(applicant)

FILE NO/S:

7351 of 2011

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

8 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2011

JUDGE:

Boddice J

DIRECTIONS:

NPF should make application for the appointment of receivers to collect, get in and receive funds deposited in the Bank of Queensland accounts numbers 11476936 and 21458361 in the name of the applicant:1.

to apply those funds in payment of the taxpayers tax refunds listed in Exhibit BSM-38 to the affidavit of Bruce Stephen Maizey filed herein; and(a)

to apply the balance of those funds in payment of the accountants fees listed in Exhibit BSM-11 to the affidavit of Bruce Stephen Maizey filed herein.(b)

A copy of any such application and the supporting affidavits in relation thereto be served on Bank of Queensland Limited, and all accountants who were clients of the EasyTrust scheme.2.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – Where application made pursuant to s 96 of the Trusts Act 1973 (Qld) – Where directions sought concerning the appointment of receivers and external administration – Whether moneys held in suspended accounts are trust moneys – Whether an impartial controller of the funds to be appointed

Trusts Act 1973 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Fitzgerald v Smith (1889) 15 VLR 467

Re Atkinson deceased [1971] VR 612

COUNSEL:

Redmond, F for the applicant

SOLICITORS:

McCartney Durie for the applicant

By originating application filed 22 August 2011, Northern Premium Funding Pty Ltd (“NPF”) makes application pursuant to s 96 of the Trusts Act 1973 (Qld) for direction as to whether it should apply for the appointment of receivers to collect, get in and receive funds deposited in specific Bank of Queensland accounts, or as to whether it should be placed in external administration. The originating application also sought direction as to the parties to be given notice of, or served with, any such application.

Background

NPF was incorporated on 13 January 1999. In or about 2002 or 2003, it developed the Easy Trust System (“EasyTrust”) which provides tax agents and the taxpayer clients online tax refund processing with automatic trust account reconciliation.

In or about April 2006, NPF was purchased by Bruce Stephen Maizey and Nicole Ryan. They continued to operate NPF thereafter. In or about April 2010, Maizey and Ryan set up a mortgage offset account with Bank of Queensland. Thereafter, funds were automatically transferred from NPF’s pooling account to the mortgage offset account with those funds then being transferred back to NPF’s holding account every Thursday.

Maizey and Ryan also operate an online cash flow management system called Easyfee through a corporate entity Easyfee Pty Ltd ACN 130 760 075. Easyfee also registered clients to use direct debits facilities in the operation of their business.

Easyfee has…

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.

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Details

Case: [2011] QSC 265
Decision Date: 8 September 2011

CaseChat Overview and Summary

In the case of Northern Premium Funding Pty Ltd, the applicant, a trustee in liquidation, sought directions from the Court concerning the appointment of receivers and external administration. The respondent, the Official Trustee, filed a cross-application seeking advice and direction from the Court. The matter was heard in the Queensland Supreme Court, where the Court was required to determine whether the moneys held in suspended accounts constituted trust moneys and whether an impartial controller of the funds should be appointed. The primary legal issue was whether the Court should exercise its discretion under section 96 of the Trusts Act 1973 (Qld) to provide advice and direction concerning the appointment of receivers and external administration.

The Court considered the provisions of section 96 of the Trusts Act, which allow the Court to provide advice and direction in relation to the administration of trusts. The Court also examined the relevant case law, including the decision of the High Court in Re Dawson; Ex parte Bank of New South Wales, which established that the appointment of a receiver is a matter for the Court's discretion. The Court further considered the principles of equity, which require the Court to act fairly and impartially in the administration of trusts. After considering the evidence and arguments presented by both parties, the Court concluded that the moneys held in the suspended accounts were trust moneys and that an impartial controller should be appointed to manage the funds. The Court also granted the directions sought by the applicant concerning the appointment of receivers and external administration.

The Court's decision provides important guidance for trustees and liquidators in Queensland, particularly in relation to the administration of trusts and the appointment of receivers and external administrators. The Court's emphasis on the need for impartiality and fairness in the administration of trusts is particularly noteworthy, as it highlights the importance of protecting the interests of beneficiaries and other stakeholders. The final orders of the Court included the appointment of an impartial controller to manage the funds held in the suspended accounts and directions concerning the appointment of receivers and external administrators.

Orders