Pleash (Liquidator), in the matter of SFG Relocations Pty Ltd v Fourie (No 3)

The liquidator of SFG Relocations Pty Ltd, Pleash, sought the return of trade marks from various defendants, including Mr. Fourie, Watchman, and EW1892. The trade marks were originally held by WAUS, a company within a group controlled by Mr. Fourie. The dispute centred on the legitimacy of two transfers of the trade marks to other companies within the group, which the liquidator claimed were unreasonable director-related transactions. The court was tasked with determining whether these transfers breached sections 180, 181, and/or 182 of the Corporations Act 2001 (Cth), and whether the fiduciary duties of the director were breached. Additionally, the court had to decide if the trade marks should be returned to WAUS or if the transferee companies held the trade marks on constructive trust.

The court found that the transfers of the trade marks were indeed unreasonable director-related transactions that breached the director's fiduciary duties. It was determined that Mr. Fourie, as the director, acted in a manner that was not in the best interest of the company and failed to exercise due care and diligence. The transfers were considered to be in breach of sections 180, 181, and/or 182 of the Corporations Act, as well as the director's fiduciary duties. The transferee companies were found to have received the trade marks in knowing receipt of property in breach of trust, and thus held the trade marks on constructive trust. Consequently, the trade marks were ordered to be returned to WAUS.

The court ordered the trade marks numbered 798878, 1385432, and 1994788 to be conveyed to SFG Relocations Pty Ltd (in liq) within 28 days. In default of compliance, a Registrar of the Court was authorised to execute all necessary documents. The first, third, and fourth defendants were jointly and severally ordered to pay the plaintiff’s costs of the proceeding on the “trade mark questions,” but not the “documents questions.” The court granted liberty to apply for consideration of declarations and orders for compensation if the trade marks could not be transferred as ordered. The costs were to follow the event, meaning the defendants should pay the liquidator’s costs relating to the trade mark issues.