Pleash (liquidator) v Tucker

The case of Pleash (liquidator) v Tucker involves a dispute between liquidators and a beneficiary or object of discretionary trusts, as well as a director of corporate trustees. The liquidators sought to assess the means of the examinee to pay prospective debt. The legal issues revolved around whether the control exception applied where the beneficiary controls the distribution of trust assets, and whether the income and capital of the trusts and third parties were relevant to the examinable affairs. Additionally, the liquidators needed to establish a basis for asserting the potential to trace funds into the trusts, and the relevance of Part VI Division 4A of the Bankruptcy Act 1966 (Cth) to the prospect of payment.

The court examined the arguments presented by the liquidators and concluded that they had not established a basis for asserting the potential to trace funds into the trusts. The court noted that the liquidators' focus was on the potential for recovery of any judgment debt from the examinee, and not on tracing profits from the MS Asia debt acquisition. The court found that the liquidators had not raised the issue of tracing before the primary judge and that it was not open to them to raise it on appeal. The court also found that the liquidators' reliance on the transcript excerpts from the examinee's examination was not sufficient to establish the relevance of tracing.

The appeal was dismissed, and the interlocutory application for production of documents filed on 20 April 2018 was also dismissed. The parties were required to file any submissions with respect to costs within seven days, and the question of costs would be dealt with on the papers.