Re Australian Exhibition Group Pty Ltd (in liq)
[2025] VSC 451
•17 July 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2024 03995
IN THE MATTER of AUSTRALIAN EXHIBITION GROUP PTY LTD (IN LIQUIDATION) (ACN 627 304 938)
BETWEEN:
| RICHARD ROHRT & ORS (according to the attached Schedule) | Plaintiffs |
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JUDGE: | Gardiner AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 July 2025 |
DATE OF JUDGMENT: | 17 July 2025, ex tempore |
CASE MAY BE CITED AS: | Re Australian Exhibition Group Pty Ltd (in liq) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 451 (revised 28 July 2025) |
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CORPORATIONS – External administration – Corporations Act 2001 (Cth), s 420, sch 2, ss 90-15, 90-20 (‘Insolvency Practice Schedule (Corporations)’) – Trustee Act 1958 (Vic), s 63 – Liquidation of companies which acted as trustees of unit trusts – Application by liquidator for orders in respect of the trust property – Companies became bare trustees upon liquidation by reason of operation of ipso facto clause in trust deeds – Trustees right of indemnity from trust assets – Evidence that companies only carried on business as trustees of the trusts – Orders made that liquidator was justified and acting reasonably and proceeding on the basis that the companies respectively acted solely as trustees of the trusts and that all the property of the trusts are properly characterised as property of the companies and that all creditors of the company were creditors of the respective trusts – Orders made giving the liquidators powers in respect of the assets of the trusts nunc pro tunc under s 63 of Trustee Act 1958 (Vic) by reference to the powers described in s 420(2) of the Corporations Act 2001 (Cth) – Declaration made that Instagram account was property of one of the trusts.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms V Bell of counsel | Mansour Lawyers |
TABLE OF CONTENTS
Background
Specifics of the Trusts
The AEG Trust
The ATE Trust
Instagram Account
Mr Rohrt’s submissions
Legal principles
Consideration
Orders
HIS HONOUR:
The first plaintiff, Richard Rohrt, (‘Liquidator’) is the liquidator of the second plaintiff, Australian Exhibition Group Pty Ltd (in liquidation) (ACN 627 304 938) (‘AEG’) and the third plaintiff, Australian Tattoo Events Pty Ltd (in liquidation) (ACN 627 395 902) (‘ATE’).
By summons filed 2 July 2025, the Liquidator applied under s 90-15 of Schedule 2 the Insolvency Practice Schedule (Corporations) (‘Schedule 2’) to the Corporations Act 2001 (Cth) (‘Corporations Act’), r 54.02 of Supreme Court (General Civil Procedure) Rules (‘Rules’), s 63 of Trustee Act 1952 (Vic) (‘Trustee Act’), s 477 of the Corporations Act, s 37 of Supreme Court Act 1986 (Vic) (‘Supreme Court Act’), r 39.02 of the Rules[1] and s 420(2) of the Corporations Act concerning the realisation of trust assets.[2] The summons also sought a declaration concerning an Instagram account with the handle ‘austattooexpo’.
[1]Section 37 of the Supreme Court Act and r 39.02 of the Rules have no application in these circumstances as the Liquidator did not press for the appointment of a court appointed receiver.
[2]In her written submissions, Ms Bell of counsel for the Liquidator submitted that rather than seeking a declaration under s 21 of the Federal Court if Australia Act 1976 (Cth) as is sought in the summons, a declaration is sought under the inherent jurisdiction of the this court; with the assent of the Court, additional submissions were filed concerning this aspect of the application after the hearing of this matter.
In support of the summons, Mr Rohrt relies on his affidavit sworn 27 June 2025.
The summons has been served on Kevin Mack Investments Pty Ltd.[3] Mr Frankie Ngo, who supports the Liquidator’s application, has also been notified of it. As will be seen from the summary of the background below, Kevin Mack Investments Pty Ltd and Mr Ngo’s entity, True Road Pty Ltd, are both interested parties in the liquidations and were involved in the affairs of AEG and ATE.
[3]An affidavit of service of the summons on Kevin Mack Investments Pty Ltd sworn 16 July 2025 has also been filed with the Court.
The summons sought relief under s 90-15 of Schedule 2. Rule 2.8(3) of the Supreme Court (Corporations) Rules 2023 (‘Corporations Rules’) requires that the Australian Securities and Investments Commission (‘ASIC’) be served with the application and supporting affidavit but this has not been done. Rather than adjourn the matter to enable such service to occur, I have made orders that ASIC be served with the application and a copy of the orders that I made on 17 July 2025 and provided that there be liberty to apply by ASIC if it is minded to take issue with the orders.[4]
[4]See approach taken by Moshinsky J in Re Brimson Pty Ltd (in liq) (2019) 136 ACSR 649, 657 (‘Re Brimson’).
In the summons, Mr Rohrt sought the following relief:
(a)an order pursuant to s 90-15 of Schedule 2 and/or r 54.02 of the Rules that the Liquidator is justified and acting reasonably on the basis that:
(i)the second plaintiff acts as trustee of the Australian Exhibition Group Unit Trust (‘AEG Trust’)
(ii)all property, assets and undertaking of the AEG Trust are properly characterised as property held by the AEG Trust in its capacity as trustee of the AEG Trust (‘AEG Trust Property’); and
(iii)the Liquidator incurred liabilities as trustee for the AEG Trust.
(b)An order pursuant to s 90-15 of Schedule 2 and/or r 54.02 of the Rules that the Liquidator is justified and acting reasonably on the basis that:
(i)the third plaintiff acts solely as trustee of the Australian Tattoo Events Unit Trust (‘ATE Trust)’;
(ii)all property, assets and undertaking of the ATE Trust is properly characterised as property held by the ATE Trust in its capacity as trustee of the ATE Trust (‘ATE Trust Property’);
(iii)the Liquidator incurred liabilities as trustee for the ATE Trust.
(c)Pursuant to s 63 of the Trustee Act, the following powers are necessary to enable the Liquidator to wind up the AEG Trust and ATE Trust be conferred nunc pro tunc on the Liquidator:
(i)the power to carry on the business of the AEG Trust and ATE Trust;
(ii)the power to sell the AEG Trust Property and ATE Trust Property;
(iii)the power to compromise any claim made against AEG in its capacity as trustee of the AEG Trust or against the AEG Trust Property on any terms the Liquidator sees fit;
(iv)the power to compromise any claim made against ATE in its capacity as trustee of the ATE Trust or against the ATE Trust Property on any terms the Liquidator sees fit;
(v)the power to bring any claim against any party on behalf of the AEG Trust and the ATE Trust; and
(vi)the power to execute any tax return, financial statements or other documents relating to the AEG Trust and the ATE Trust.
(d)in the alternative to (a) to (c) above, an order pursuant to s 90-15 of Schedule 2, the Liquidator is able to rely on his statutory powers as Liquidator of AEG and ATE pursuant to s 477 of the Corporations Act to take all necessary steps to wind up the AEG Trust and the ATE Trust pursuant to paragraph (c) above;
(e)in the alternative to (a) to (c) above, an order pursuant to s 37 of the Supreme Court Act and/or r 39.02 of the Rules that the Liquidator be appointed receiver and manager without security over the AEG Trust Property and the ATE Trust Property;
(f)in the alternative to (a) to (c) above, an order that the Liquidator has the powers to deal with AEG Trust Property and the ATE Trust Property as set out in s 420(2) of the Corporations Act; and
(g)a declaration that the ‘austattooexpo’ Instagram account is ATE Trust Property.[5]
[5]See (n 2).
On 21 July 2025, I made the orders which are set out for convenience of reference at the conclusion of these reasons. I gave brief reasons on the return of the summons and indicated that I would produce more elaborate and detailed reasons at a later time.
Background
AEG and ATE are a part of a group of related companies which operate businesses as exhibition managers and operators in their respective industry areas.
AEG organised, managed, and operated exhibitions known as ‘SEXPO’ across four states in Australia, including Victoria, New South Wales, South Australia and Western Australia.
ATE organised exhibitions featuring live tattooing, art displays, competitions and workshops across four states in Australia, including Victoria, New South Wales, South Australia and Western Australia.
Three associated companies, which are not trustees and are therefore not involved in this proceeding are:
(a)Common Media Group Pty Ltd (In Liquidation) (ACN 652 674 792);
(b)Mack Holdings (Aust) Pty Ltd (In Liquidation) (ACN 666 231 296); and
(c)Megacon Pty Ltd (In Liquidation) (ACN 665 765 462), (‘Associated Companies’).
On 23 October 2024, I ordered that AEG, ATE and the Associated Companies (‘AEG Group’) be wound up on the just and equitable ground and I appointed Mr Rohrt as liquidator in each winding up.
The AEG Group was established by Mr Kevin Mack in or about July 2018. In March 2019, Mr Mack through AEG entered into an agreement to purchase the business and associated assets of SEXPO.
In August 2023, Mr Frankie Ngo invested in the AEG Group, through his company, True Road Pty Ltd (ACN 632 110 082) (‘True Road’).This is recorded in various sale and investment agreements between Mr Mack's shareholder company, Kevin Mack Investments Pty Ltd (ACN 627 289 141) (‘Kevin Mack Investments’), True Road and each company in the AEG Group (‘Sale Agreements’).
Pursuant to the Sale Agreements, Mr Ngo was appointed as a director of each company in the AEG Group and True Road became a shareholder, taking 49 shares in each company. In addition, Mr Ngo, through True Road, acquired 96 units in the AEG Trust and the ATE Trust.
On the same day in August 2023, Kevin Mack Investments, True Road, Mr Mack, Mr Ngo, and the AEG Group entered into the Shareholders’ and Unitholders’ Agreement.
The Shareholders’ and Unitholders’ Agreement records the intentions of the parties for how the AEG Group would function, including:
(a)the purposes and objectives for each company;
(b)the establishment and operation of the trusts;
(c)the structure and management of the companies; and
(d)other administrative matters.
Specifics of the Trusts
The AEG Trust
AEG was incorporated on 4 July 2018. The directors of AEG are Mr Ngo and Mr Mack.
The shareholders of AEG are Kevin Mack Investments and True Road (‘AEG Shareholder Companies’).
On or about 4 July 2018, AEG executed an unit trust deed (‘AEG Trust Deed’) establishing the AEG Trust. The schedule to the AEG Trust Deed records:
(a)AEG as the trustee of the AEG Trust; and
(b)Kevin Mack Investments as trustee for Mack Enterprises Trust as the sole unit holder.
From 15 August 2023, as recorded in the Sale Agreements, True Road held 96 units in the AEG Trust.[6]
[6]Mr Rohrt does not have an updated AEG Trust Deed or AEG Trust meeting minutes reflecting this change.
Clause 2.3 of the Shareholders’ and Unitholders’ Agreement records that the purpose of AEG is to act as trustee of the AEG Trust and in that role is to produce and manage all events associated with the SEXPO, LoveX and Yeah Tix brand (‘SEXPO Events’).
In the course of the liquidation of AEG, Mr Rohrt received certain books and records. The following documents are relied upon by Mr Rohrt for the purposes of the present application:
(a)the AEG Trust Deed;
(b)tax returns for the 2020 financial year;
(c)financial statements for the 2020 financial year;
(d)invoices rendered by AEG in its capacity as trustee for the AEG Trust;
(e)the AEG Sale and Investment Agreement; and
(f)the Shareholders’ and Unitholders’ Agreement.
The following observations made by Mr Rohrt in his affidavit were sourced from his review of the abovementioned documents:
(a)AEG operated as Trustee for the AEG Trust;
(b)in its capacity as trustee, it operated the business which organised, managed and operated SEXPO Events nationwide;
(c)the AEG Trust was established on the same day that AEG was incorporated;
(d)it appears the sole purpose of the AEG Trust was to hold assets for the benefit of the unit holders under the AEG Trust;
(e)invoices were rendered by AEG in its capacity as trustee of the AEG Trust and were issued in the name of the AEG Trust;
(f)financial statements for AEG were prepared and provided on behalf of the AEG Trust;
(g)tax returns were prepared and filed on behalf of AEG in its capacity as trustee of the AEG Trust and listed AEG as trustee of the AEG Trust; and
(h)the Shareholders’ and Unitholders’ Agreement provides that the intention of all related parties to the AEG Group was for AEG to operate as trustee for the AEG Trust and carry on business in the same regard.
On 15 January 2025, Mr Rohrt arranged for searches to be carried out on the Personal Property Securities Register (‘PPSR’) with respect to AEG and the AEG Trust. Based on those searches, Mr Rohrt determined that there were three PPSR registrations against AEG.
The searches also revealed that two of the PPSR registrations recorded against AEG were also recorded against the ABN associated with the AEG Trust. The position in that regard is summarised in the table below:
Secured Creditor
Registration over Trust or Company
HGC Administrative Services
Company only
Canon Finance Australia
Company and Trust
Pepper Asset Finance
Company and Trust
Mr Rohrt reviewed the AEG Trust Deed and referred to the following provisions concerned with liquidation:
Removal of the trustee
84The unit holders may remove a trustee at any time in accordance with law or by passing a special resolution.
Termination of the appointment of the trustee
85The appointment of a trustee terminates automatically if any of the following occurs:
·the trustee is found to be of unsound mind, or the trustee or his or her estate becomes liable to be dealt with in any way under a law dealing with mental health;
·the trustee becomes bankrupt or makes an arrangement or composition with his or her creditors;
·the trustee enters into compulsory or voluntary liquidation (except for the purposes of amalgamation or reconstruction}, or has an administrator, receiver, official manager, or receiver and manager appointed to any party of its assets.
The transfer of assets
86 On retirement or removal of a trustee, or automatic termination of a trustee’s appointment, the trustee must immediately do each of the following at the trust’s expense:
·hand over the books, accounts, documents and property of the trust to the new trustee;
·do everything necessary to vest the assets of the trust in the new trustee;
·do everything reasonably required by the new trustee to hand over to the new trustee possession and control of any assets in the hands of third parties;
·do everything reasonably required by the new trustee to inform the new trustee of the full state of affairs of the trust.
Mr Rohrt deposes that he is not aware nor does he believe that AEG retired or was removed in accordance with cl 84 of the AEG Trust Deed. He contends that cl 85 of the AEG Trust Deed has been triggered and AEG’s appointment as trustee has been terminated automatically.
On 22 January 2025, Mr Rohrt issued the Statutory Report for AEG to creditors (‘AEG Statutory Report’). In the AEG Statutory Report Mr Rohrt stated, inter alia, that:
(a)AEG has assets totalling $1,244.25;
(b)AEG has liabilities totalling $2,396,951.24;
(c)AEG maintains a bank account with Commonwealth Bank of Australia (‘CBA’) (‘AEG CBA Account’), with a balance of $1,244.25, the CBA Account is in the name of AEG and the funds in the CBA Account have been recovered in full and are held in AEG's liquidation account;
(d)Mr Ngo advised Mr Rohrt that AEG also held a bank account with GoCardless, GoCardless has not responded to Mr Rohrt’s enquiries and no other bank accounts held in AEG’s name have been identified;
(e)CBA only corresponded with Mr Rohrt in regards to AEG and there was no mention by CBA of any bank accounts held in name of the AEG Trust or by AEG in its capacity as trustee of the AEG Trust;
(f)three trademarks were registered in AEG’s name;
(g)a review of AEG’s Xero management account showed AEG had purchased various items of plant and equipment, including laptops, cameras, lighting and office equipment but when Mr Rohrt attended AEG’s last place of business, the premises had been vacated and no plant nor equipment remained;
(h)Mr Rohrt noted that AEG’s last recorded place of business was a leased premises in Prahran however the lease was to another related entity, Emerch Pty Ltd (‘Emerch’), which is now in liquidation and a representative from the office of Mr Greg Andrews, the liquidator of Emerch, has confirmed that Emerch was the tenant of the Prahran premises used by AEG and ATE;
(i)AEG has related party claims totalling $156,400.00;
(j)There are three security interests registered against AEG on the PPSR:
(i)Canon Finance Australia Pty Ltd held a registered security interest over AEG's photocopiers, printers and associated print management plan;
(ii)HGC Administrative Services Pty Ltd (‘HGC Admin’) held a security interest over AEG's intellectual Property; and
(iii)One Pepper Asset Finance Pty Ltd holds a security interest over the 2019 Mercedes-Benz Sprinter motor vehicle registered to AEG pursuant to a finance agreement;
(k)AEG owes superannuation of $12,718.17 (still to be reconciled); and
(l)it appears unlikely that a dividend will be declared to unsecured creditors.
The Statutory Report also included a remuneration report for Mr Rohrt’s fees up to completion of the liquidation. The fees were approved by proposals put to the creditors of AEG.
Mr Rohrt states that the proceeds from AEG SEXPO events, consisting of ticket sales totalling $123,241.34, were not deposited into AEG’s accounts. The report of a ticketing agency, Eventbrite, indicates that some SEXPO event payments may have been made to bank accounts controlled by Mr Mack. The report shows five bank accounts in to which ticket revenue was deposited. The accounts are:
(a)Australian Tattoo Events Pty Ltd Commonwealth Bank XXXXX 1688;
(b)the AEG CBA Account;
(c)Commonwealth Bank Kevin Mack Kevin XXXXX 3890;
(d)NAB Kevin Mack NAB AEG Account XXXXX 0970; and
(e)NAB Kevin Mack NAB ATE Account XXXXX 1568.
Based on the above, Mr Rohrt concludes that:
(a)any assets of AEG are held by it in its capacity as trustee of the AEG Trust;
(b)any liabilities incurred by AEG were incurred by it in its capacity as trustee of the AEG Trust; and
(c)AEG did not operate in its own right.
The ATE Trust
ATE was incorporated on 9 July 2018. The directors of ATE are Mr Ngo and Mr Mack. The shareholders of ATE are Kevin Mack Investments and True Road (‘ATE Shareholder Companies’).
On or about 9 July 2018, ATE executed the ATE Trust Deed establishing the ATE Trust. The Schedule to the ATE Trust Deed:
(a)recorded ATE as the trustee of the ATE Trust; and
(b)recorded the unit holder as Kevin Mack Investments as trustee for Mack Enterprises Trust.
From 15 August 2023, as recorded in the Sale Agreements, True Road held 96 units in the AEG Trust.[7]
[7]Mr Rohrt is not in possession of an updated AEG Trust Deed or AEG Trust meeting minutes reflecting this change.
The Shareholders’ and Unitholders’ Agreement records that the purpose of ATE was to act as trustee of the ATE Trust, and in that role was to produce and manage all events associated with the Australian Tattoo Expo and Rites of Passage Tattoo Festival.
In the course of the liquidation of ATE, Mr Rohrt has received certain books and records. Mr Rohrt considered the following documents are relevant in the context of the present application:
(a)the ATE Trust Deed;
(b)invoices issued by ATE in their capacity as trustee of the ATE Trust;
(c)BAS extracts from the ATO portal lodged by ATE, which are in the name of the ATE Trust; and
(d)Shareholders’ and Unitholders’ Agreement.
Mr Rohrt makes the following observations based on the abovementioned documents:
(a)ATE operated as trustee for the ATE Trust;
(b)in its capacity as trustee, it operated the business which organised, managed and operated tattoo exhibitions nationwide;
(c)the ATE Trust was established on the same day ATE was incorporated;
(d)it appears the sole purpose of the ATE Trust was to hold assets for the benefit of the unit holders under the ATE Trust;
(e)invoices were rendered by ATE in their capacity as trustee of the ATE Trust;
(f)BAS lodgements were filed with the ATO in the name of the ATE Trust;
(g)ATE held minimal moneys in its own right;
(h)it appears that ATE only traded in its capacity as trustee of the ATE Trust;
(i)the predominant purpose of the ATE Trust was to hold assets for the benefit of the unit holders under the Trust; and
(j)the Shareholders’ and Unitholders’ Agreement shows that the mutual intention of all related parties to the AEG Group, was for ATE to operate as trustee for the ATE Trust and carry on business in the same regard.
Mr Rohrt states that, based on the information provided to him and his investigations to date, ATE operated solely in its capacity as trustee of the ATE Trust a majority, if not all, of the time.
Mr Rohrt states that he has reviewed the ATE Trust Deed and notes that it contained identical provisions to the AEG Trust Deed in relation to liquidation.[8]
[8]The relevant provisions are set out in [27] above.
Mr Rohrt deposes that he is not aware nor does he believe that ATE retired or was removed in accordance with cl 84 of the ATE Trust Deed. He contends that cl 85 of the ATE Trust Deed has been triggered and the appointment of ATE as trustee has been terminated automatically.
On 22 January 2025, Mr Rohrt issued the Statutory Report to creditors for ATE (‘ATE Statutory Report’). In the ATE Statutory Report Mr Rohrt stated, inter alia, that:
(a)ATE has assets totalling $7,352.00;
(b)ATE has liabilities totalling $1,426,557.00;
(c)ATE maintains two bank accounts with CBA XXX 1688 and XXX 6409 (‘ATE CBA Accounts’), with a combined balance of $7,352.82, CBA is still holding the funds in the ATE CBA Accounts;
(d)ATE’s Xero records showed another account with Square Balance with a balance of $335,498.00 and Square Balance has advised the account held a debit balance and there are no funds to recover;
(e)a site visit to a storage facility held in the name of AEG and utilised by ATE, identified some plant and equipment, including massage and tattoo beds, tables and various other miscellaneous plant and equipment, these assets have not been realised and their value is unknown;
(f)there are two security interests registered against ATE on the PPSR and the PPSR searches show:
(i)Fundit Ltd (‘Fundit’) holds a registered security interest over all ATE's past and present property in relation to $305,121.10 owed to them by ATE and Fundit, through its solicitors, provided the documents which confirmed that the directors had entered into a guarantee and indemnity for this security;
(ii)Cevol Industries (‘Cevol’) holds a security interest in relation to a hire agreement of equipment and submitted a formal proof of debt to Mr Rohrt’s office in the amount of $1,530.82;
(g)ATE has outstanding superannuation obligations of $1,276.74; and
(h)it appears unlikely that a dividend will be declared to unsecured creditors.
Mr Rohrt identified that the proceeds from the planned ATE tattoo events, consisting of ticket sales of $104,211.49, were not deposited into ATE’s accounts. It appears these ticket sale proceeds were transferred to bank accounts CBA 3890 and NAB 1568 controlled by Mr Mack.[9]
[9]Mr Rohrt does not have any evidence that the CBA 3890 and NAB 1568 bank accounts were in ATE's name.
Based on the above, Mr Rohrt deposes that:
(a)any assets of ATE are held by it in its capacity as trustee of the ATE Trust; and
(b)any liabilities incurred by ATE were incurred by it in its capacity as the trustee of the ATE Trust.
Instagram Account
Based on his investigations and his review of the records for ATE, Mr Rohrt considers that the ATE Trust Property includes associated social media pages.
Following Mr Rohrt’s appointment as liquidator, a list of ATE’s accounts and domains along with the details needed to access these, including usernames and passwords were provided to Mr Rohrt by Mr Ngo.
Mr Rohrt also made reference to a document entitled ‘Sale and Assignment of Goodwill and IP Deed’ (‘IP Deed’). The IP Deed describes Emerch as the assignor and ATE in its capacity as the trustee for the ATE Trust as the assignee. By the IP Deed, Emerch as the assignor, sold, assigned and transferred a selection of defined ‘Goodwill and Intellectual Property’ to ATE on 20 June 2023.
Clause 2 of the IP Deed stated:
2. Sale and Assignment of Goodwill and IP
2.1. Sale and Assignment
The Assignor sells, assigns and transfers to the Assignee:
(a)all of its right, title and interest (both legal and beneficial) in and to the Goodwill, the Material and the Intellectual Property Rights; and
(b)all contract rights, causes of action and goodwill in or related to any of the Goodwill or the Intellectual Property Rights or the Material
at and with effect on the Effective Date.
2.2. Purchase and Assignment Price
In consideration for the sale, assignment and transfer of the Goodwill and the IP under clause 2.1, the Assignee will pay to the Assignor on the Effective Date the amount of $1,200,000.00 (Purchase Price).
The ‘Effective Date’ was 20 June 2023. ‘Material’ was defined as meaning the property set out in the schedule; the list in the schedule included ‘Social Media pages’.
Mr Rohrt understood from conversations he has had with Mr Ngo that one of the key social media pages for ATE was an lnstagram account under the handle ‘austattooexpo’ (‘ATE Instagram Account’).Mr Rohrt contends the effect of the IP Deed is that, since 20 June 2023, the ATE Instagram account was owned by ATE as Trustee for the ATE Trust and therefore the ATE Instagram Account is ATE Trust Property.
Mr Rohrt states that at some point in time after he was appointed as the liquidator for ATE, Mr Mack took unauthorised control of the ATE Instagram Account.
Mr Rohrt understands that since Mr Mack took control of the ATE lnstagram Account, the following things have happened:
(a)the email address linked to the ATE Instagram Account was updated to an email address not in control of ATE and unknown to Mr Rohrt or Mr Ngo;
(b)the password to the ATE Instagram Account was changed and it can now only be reset through the unknown email address; and
(c)Mr Rohrt has no access to the ATE Instagram Account.
Mr Rohrt deposes that the ATE Instagram Account is ATE Trust Property and it has been dealt with improperly by Mr Mack and should be returned to ATE immediately. The purpose of the declaratory relief sought in relation to the ATE Instagram Account is to enable Mr Rohrt to engage with Instagram for the purposes of regaining access to the account.
Mr Rohrt’s affidavit concludes by deposing that Mr Ngo has indicated that he is willing to fund Mr Rohrt to cover the costs of this application. Because the agreement in that regard may extend over three months, Mr Rohrt sent a circular to creditors seeking their consent to enter into the agreement concerning such funding. A meeting of creditors was convened on 14 May 2025 to allow Mr Rohrt to put up resolutions to obtain the relevant approval of creditors pursuant to s 477(2B) of the Corporations Act to enter into the agreement with Mr Ngo.
Mr Rohrt’s submissions
Ms Bell, counsel for Mr Rohrt, after surveying the factual background to the matter by reference to the evidence of Mr Rohrt, referred to the decision of Anastassiou J in Mutton (Liquidator), in the Matter of Balsub Pty Ltd (in liq)[10] where his Honour observed that orders under State legislation such as s 63(1) of the Trustee Act are appropriate where:[11]
(a)the company has become a bare trustee of the assets of the trust upon the appointment of the liquidator;
(b)the company had acted only as trustee of the trust and in no other capacity;
(c)all assets owned by the company were held by it as trustee and all liabilities incurred by it were incurred in its capacity as trustee; and
(d) no new trustee had been appointed.
[10](2020) 145 ACSR 342.
[11]Ibid 348 (Anastassiou J).
The submissions observed that where the property of the trust will be exhausted following the right of exoneration and subsequent distribution to creditors the authorities indicate that the Court should confer a power of sale to the liquidator rather than appoint the liquidator or another person as receiver of the trust assets.[12] Conversely, where the relevant trustee empowers unit holders to remove the trustee and where it is necessary to secure a former trustee’s right of indemnity out of the trust assets it may be more appropriate to appoint a receiver.[13]
[12]Citing Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) (2018) 354 ALR 436, 457–8 (Allsop CJ) (‘Re Killarnee’).
[13]Waratah Group Pty Ltd (in liq) [2020] VSC 523. [44]–[48].
The submissions contend that in circumstances where there is no suggestion that the unit holders will take steps to remove the respective trustees (which is most unlikely, indeed this application is being funded by Mr Ngo, who is associated with one of the unit holders) and where it is clear there will be no surplus assets following realisation and payment of creditors, it is appropriate that the Court grant the relief sought in paragraphs (a), (b) and (c) of the summons which are set out at [6] above.
As to the ATE Instagram Account, a declaration is sought that it is property of the ATE trust. The claim for a declaration for the ATE Instagram Account was the subject of supplementary submissions. That declaration is sought pursuant to the Court’s inherent jurisdiction to enable Mr Rohrt to engage with Instagram for the purpose of regaining access to that account; as the IP Deed clearly evidences that the ATE Instagram account is property of the ATE trust, it is submitted that it is entirely appropriate for the Court to make the declaration sought.
At the hearing of this matter, I suggested that counsel consider formulating the request for a declaration as to the ownership of the Instagram account in the form of a direction or order under s 90-15 of Schedule 2. Counsel requested the opportunity to formulate a memorandum concerning this, and this has been done. Ms Bell stated that on a review of the authorities, it would be difficult to formulate an order under that provision in a manner that is sufficiently definitive to achieve the Liquidator’s objectives, that is, to engage with Instagram to gain control of the Instagram account. Instead, she submitted that a declaration should be made in the revised form which is sought in her written submissions and pointed to various provisions and case law in that regard.
The supplementary submissions began with the contention that the Supreme Court has a broad jurisdiction to grant declaratory relief and major constraints against the granting of relief are discretionary. Ms Bell pointed to the power of associate judges under r 77.01 of the Rules to ‘give any judgment or make any order, including any judgment or order in the exercise of the inherent jurisdiction of the Court’.
The submissions then refer to a number of authorities and texts in support of the proposition that declaratory relief should be granted. The first of these, Aussie Airlines Pty Ltd v Australian Airlines Ltd,[14] identified several tests which were required to be satisfied for a party to have standing to seek and obtain declaratory relief. These were as follows:[15]
·The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies. The answer to the question must produce some real consequences for the parties.
·The applicant for declaratory relief will not have sufficient status if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’; or if the Court’s declaration will produce no foreseeable consequences for the parties’.
·The parties seeking declaratory relief must have a real interest to raise it.
·Generally, there must be a proper contradictor.
[14](1996) 139 ALR 663.
[15]Ibid, 670–1 (Lockhart J) (citations omitted).
Reference was then made to the text Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies:[16]
Assuming a real question exists for adjudication, a declaration to resolve the dispute must also be real. Answers in a declaration which are not based on agreed or found facts are purely hypothetical and thus bad. ‘At best, [such] answers do no more than declare that the law dictates a particular result when certain facts in the material pleadings are established.’
[16]J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2014) [90-165].
The submissions quoted a lengthy passage from to the decision of the High Court in Bass v Permanent Trustee Co Ltd. [17] The salient principles of that judgment may be summarised as follows:[18]
·The object of judicial process is the final determination of the rights between the parties to an action and Courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions.
·The UK decision of In re F (Mental Patient: Sterilisation) was cited, where Lord Goff stated:[19]
a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, e.g. in default of defence or on admissions or by consent.
·Emphasis was placed on the difference between an advisory opinion and a declaratory judgment: an advisory opinion is not based on a concrete situation and does not amount to a binding decision giving rise to res judicata between the parties. Where a dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration.
[17](1999) 198 CLR 334.
[18]Ibid 355–7 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[19]Ibid 82 (Lord Goff).
Legal principles
Applications of the type brought by Mr Rohrt in this summons are now commonplace in the Corporations Lists of State Supreme Courts and the Federal Court. The underlying principles to be applied were comprehensively surveyed by the Full Court of the Federal Court in Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq).[20] For the purpose of this application, it suffices, in my view, to refer to the succinct summation of these principles which were collected and considered by Moshinsky J in Re Brimson Pty Ltd (in liq).[21] In the current context, the relevant principles are as follows: [22]
·A company that is the trustee of a trading trust has a right of indemnity to resort to the trust assets to vindicate its right to be exonerated from a liability that it has incurred in the course of carrying out trust business;
·where that company goes into liquidation, its right of indemnity and its accompanying equitable lien over the assets survives, notwithstanding that the company has been removed as trustee of the trust, for example by operation of an ipso facto clause such as cl 19 of the trust deeds in this case; and
·upon ceasing to be trustee by operation of the ipso facto clause, the company only holds the trust assets as bare trustee and, as such, the trust assets are not ‘properly of the company’ divisible amongst the creditors; the trust assets are trust property in which the corporate trustee has a proprietary interest by way of a lien or charge to secure its right of exoneration.
[20](2018) 354 ALR 436 (Allsop CJ, Siopis and Farrell JJ).
[21](2019) 136 ACSR 649.
[22]Ibid [49].
Moshinsky J further observed that courts are generally willing to make orders permitting a liquidator of a corporate trustee to sell assets in these types of circumstances. On occasions it may be appropriate to only give the liquidator a power of sale where the property of the trust will be exhausted following its sale.[23] Moshinsky J notes that the more common course is for the liquidator of the insolvent former corporate trustee to apply to be appointed receiver for the purpose of selling the trust assets and distributing the proceeds amongst trust creditors. In this regard, he observes that orders appointing the liquidator as receiver for this purpose may be made nunc pro tunc to authorise the sale of trust assets that have already occurred.[24]
[23]Ibid [50].
[24]Ibid.
Where a company has only ever acted as trustee of one trust and that has been the totality of its affairs, as the evidence indicates is the case in respect of both AEG and ATE, no issue arises as to the application of trust assets to general creditors because all of the company’s creditors are trust creditors. Where this is the position, the proceeds from the exercise from the right of exoneration are to be distributed to the trust creditors in accordance with the priorities prescribed by s 556 of the Corporations Act.[25]
[25]Ibid [51].
Consideration
I am satisfied on the basis of the matters referred to by Mr Rohrt in his affidavit that AEG and ATE respectively carried on business solely in their capacities as trustees of the respective trusts and that all of their assets are properly characterised as property held by them respectively as trustees of the trusts. As such I am persuaded that the order sought in paragraphs (a) and (b) of the summons as outlined in [6] are appropriate.
I am also persuaded that, by operation of the ipso facto clauses in the AEG and ATE Trust Deeds, they no longer have the power to realise or deal with their respective trust assets or to rely on their right of indemnification and that orders are required to be made to enable Mr Rohrt to deal with the trust assets.
I will also order that pursuant to s 63 of the Trustee Act, the Liquidator have, nunc pro tunc, in respect of the assets of the AEG Trust and the ATE Trust, all the powers described in s 420(2) of the Corporations Act 2001 (Cth) (other than those powers described in s 420(2)(s), (t), (u) and (w) as these have no application in the current context). These include the powers of the type which are described in the summons as set out in [6], sub-paragraphs (c)(i) to (vi) above.
In my view, the liquidator is also entitled to be paid his remuneration costs and expenses as liquidator of AEG and ATE from the proceeds of sale of the respective trust assets.
I consider that the liquidator is entitled to the declaration that he seeks in respect of the ATE Instagram account. The terms of the deed are clear and I consider that it has been established that the Instagram account is property of the ATE trust. The interests associated with Mr Mack, who is said to be currently controlling the account, have been served with this application.
As mentioned above, the solicitors for the Liquidator are to serve a copy of these orders, the summons filed 2 July 2025 and the supporting affidavit of Mr Rohrt filed 2 July 2025 on ASIC by 4:00pm on 23 July 2025.
For convenience, I set out below the orders which I made on 17 July 2025.
Orders
THE COURT ORDERS THAT:
Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) being Schedule 2 to the Corporations Act 2001 (Cth) (‘IPS’), the Liquidator is justified and acting reasonably in proceeding on the basis that:
(a)AEG acts solely as trustee of the AEG Trust;
(b)all the property, assets and undertaking of the AEG Trust are properly characterised as property held by AEG in its capacity as trustee of the AEG Trust; and
(c)all creditors of AEG are creditors of the AEG Trust.
Pursuant to s 90-15 of the IPS, the Liquidator is justified and acting reasonably in proceeding on the basis that:
(a)ATE acts solely as trustee of the ATE Trust;
(b)all the property, assets and undertaking of the ATE Trust are properly characterised as property held by ATE in its capacity as trustee of the ATE Trust; and
(c)all creditors of ATE are creditors of the ATE Trust.
Pursuant to s 63 of the Trustee Act 1958 (Vic) (‘Trustee Act’), the Liquidator has, in respect of the assets of the AEG Trust, nunc pro tunc, all the powers described in s 420(2) of the Corporations Act 2001 (Cth) (‘Corporations Act’) (other than those in ss 420(2)(s), (t), (u) and (w)), including, without limitation, the power to do all things necessary and convenient to:
(a)effect the sale and realisation of the assets of the AEG Trust;
(b)pay the creditors of the AEG Trust from the proceeds of the assets, pursuant to the priorities prescribed under the provisions of the Corporations Act;
(c)compromise any claim made against AEG in its capacity as trustee of the AEG Trust or against any of the assets on any terms the liquidator sees fit;
(d)bring any claim against any party on behalf of the AEG Trust; and
(e)execute any tax returns, financial statements or other documents relating to the AEG Trust.
Pursuant to s 63 of the Trustee Act, the Liquidator, has in respect of the assets of the ATE Trust, nunc pro tunc, all the powers described in s 420(2) of the Corporations Act (other than those in ss 420(2)(s), (t), (u) and (w)), including, without limitation, the power to do all things necessary and convenient to:
(a)effect the sale and realisation of the assets of the ATE Trust;
(b)pay the creditors of the ATE Trust from the proceeds of the assets, pursuant to the priorities prescribed under the provisions of the Corporations Act;
(c)compromise any claim made against ATE in its capacity as trustee of the AEG Trust or against any of the assets on any terms the liquidator sees fit;
(d)bring any claim against any party on behalf of the ATE Trust; and
(e)execute any tax returns, financial statements or other documents relating to the ATE Trust.
Pursuant to s 90–15 of the IPS that:
(a)the Liquidator is entitled to be paid his remuneration, costs and expenses incurred as liquidator of AEG from the proceeds of sale of the assets of the AEG Trust;
(b)the Liquidator is entitled to be paid his remuneration, costs and expenses incurred as liquidator of ATE from the proceeds of sale of the assets of the ATE Trust;
(c)the Liquidator be indemnified out of, and have an equitable lien over, the assets of the AEG Trust for all of his remuneration, costs and expenses attributable to the AEG Trust its assets;
(d)the Liquidator be indemnified out of, and have an equitable lien over, the assets of the ATE Trust for all of his remuneration, costs and expenses attributable to the ATE Trust its assets; and
(e)the remuneration, costs and expenses include the remuneration, costs and expenses of, and incidental to, this application are to be paid in accordance with the priority specified in s 556(1) of the Corporations Act.
THE COURT DECLARES THAT:
The Instagram account with the handle ‘austattooexpo’ is property of the ATE Trust.
THE COURT FURTHER ORDERS THAT:
Pursuant to r 2.8(3) of the Corporations Rules, the Court orders that a copy of the summons filed 2 July 2025, the supporting affidavit of Richard Rohrt filed 2 July 2025 and these orders be served on ASIC by 4:00pm on 23 July 2025.
Liberty to apply is granted to any person or creditor (including ASIC) who can demonstrate sufficient interest to modify or discharge orders 1 to 6 above on not less than 3 business days’ written notice to the Liquidator.
Liberty to apply is reserved to the Liquidator.
SCHEDULE OF PARTIES
| S ECI 2024 03995 | |
| BETWEEN: | |
| RICHARD ROHRT | First Plaintiff |
| AUSTRALIAN EXHIBITION GROUP PTY LTD (IN LIQUIDATION) (ACN 627 304 938) | Second Plaintiff |
| AUSTRALIAN TATTOO EVENTS PTY LTD (IN LIQUIDATION) (ACN 627 395 902) | Third Plaintiff |
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6
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