Re Amerind Pty Ltd (receivers and managers apptd) (in liq)

The case of Re Amerind Pty Ltd involved an application by receivers seeking directions under the Corporations Act 2001 and invoking the Court's inherent jurisdiction. The insolvent company, Amerind, was the trustee of a corporate trading trust, with its sole business being the operation of the trust. The receivers sought to distribute the receivership surplus in accordance with the priority regimes outlined in sections 433, 556, and 560 of the Corporations Act. A key issue was determining the meaning of 'property of the company' for the purpose of these priority regimes and whether the trustee's right of indemnity constituted a floating charge over the trust assets.

The court examined whether the receivers were justified in distributing the surplus and whether they were obliged to pay preferential employee entitlements from the trust assets. Additionally, the nature of the trustee's right of indemnity and the rights of subrogation of trust creditors were explored. The court considered whether the trustee's right of exoneration and the property subject to the lien supporting this right were 'property of the company' under the priority regimes, and if these assets were available to all creditors or only to meet trust liabilities. The court also addressed issues relating to the Personal Property Securities Act 2009, including the classification of assets as circulating and the implications of retention of title clauses on security interests.

The court ruled that the receivers were justified in distributing the receivership surplus according to the priority regimes, considering the trustee's right of indemnity and the property subject to the lien as 'property of the company'. The court held that these assets were available to all creditors, not just those of the trust. Additionally, the court clarified that retention of title clauses did not create separate security agreements with each delivery under the principal agreement. The court's interpretation of the relevant Commonwealth legislation was influenced by conflicting interpretations of state legislation by state courts, but ultimately, the court found that the common law of Australia should be consistent.