CON KOKKINOS (in his capacity as Liquidator of DAICS35 PTY LTD (IN LIQUIDATION) (ACN 642 495 029)	First Plaintiff
and
DAICS35 PTY LTD (IN LIQUIDATION) (ACN 642 495 029)	Second Plaintiff

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JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2025
DATE OF JUDGMENT:	17 October 2025
CASE MAY BE CITED AS:	Re Daics35 Pty Ltd (in liq)
MEDIUM NEUTRAL CITATION:	[2025] VSC 651

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CORPORATIONS – Company that carried on business as trustee of a trading trust – Trustee company now in liquidation – Company removed as trustee by reason of ‘ipso facto’ clause in trust deed – Application by liquidator for an order pursuant to s 63 of the Trustee Act 1958 (Vic) – Application for relief from liability pursuant to s 1318 of the Corporations Act 2001 (Cth) – Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 – Jones v Matrix Partners Pty Ltd; Re Killarnee Silver & Concrete Contractors Pty Ltd (in liq) (2018) 260 FCR 310 – Cremin, in re Brimson Pty Ltd (in liq) (2019) 136 ACSR 649 – Pitard Consortium Pty Ltd atf the Pitard Trust v Les Denny Pty Ltd (2019) 58 VR 524 – In the matter of Urban Property Pty Ltd [2021] VSC 847.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr N Angelakis	Vectigal Legal
For the Defendant	Not applicable	Not applicable

HIS HONOUR:

The first plaintiff (Liquidator) is the liquidator of the second plaintiff (Company). The Company was the trustee of the Talgi Family Trust (Trust) until its office was vacated by reason of a provision in the trust deed establishing the Trust, commonly known as an ipso facto clause the effect of which is determine the relationship of Company and trustee in the event of the liquidation of the Company. The Liquidator seeks that powers be conferred on the Company pursuant to s 63 of the Trustee Act 1958 (Vic) and ancillary relief so that he might carry on and complete the liquidation of the Company. The Company has a modest cash balance of $65,009 and known creditors totalling $153,036.39.

By originating process filed 21 August 2025, the plaintiffs seek orders and directions that:

(a) the Company carried on business as trustee, the property held by the Company is Trust property, and the Company’s debts are Trust debts;

(b) the Company be granted powers to deal with the Trust property, including by paying Trust creditors;

(c) the Liquidator’s dealings with the Trust property are governed by Parts 5.5 and 5.6 of the Corporations Act 2001 (Cth);

(d) to the extent necessary, the Liquidator be relieved from liability arising from his dealings with the Trust property from the date of his appointment; and

(e) the Liquidator’s remuneration and expenses be…

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.

Continue reading Re Daics35 Pty Ltd (in liq)

Details

AGLC: Re Daics35 Pty Ltd (in liq) [2025] VSC 651
Case: [2025] VSC 651
Decision Date: 17 October 2025

CaseChat Overview and Summary

The case involves Re Daics35 Pty Ltd, a company that operated as the trustee of a trading trust. The trustee company is now in liquidation, and it was removed as trustee due to an "ipso facto" clause in the trust deed. The liquidator applied for an order under section 63 of the Trustee Act 1958 (Vic) and sought relief from liability under section 1318 of the Corporations Act 2001 (Cth). The legal issues in this case revolve around the implications of the "ipso facto" clause in the trust deed, which resulted in the removal of the trustee company, and whether the liquidator is entitled to relief from liability as a consequence of the company's liquidation.

The court considered the relevant statutory provisions and case law, including Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd, Jones v Matrix Partners Pty Ltd; Re Killarnee Silver & Concrete Contractors Pty Ltd, Cremin, in re Brimson Pty Ltd, Pitard Consortium Pty Ltd atf the Pitard Trust v Les Denny Pty Ltd, and In the matter of Urban Property Pty Ltd. The court examined the effect of the "ipso facto" clause and whether it operated to remove the trustee company from its obligations under the trust deed. The court also considered whether the liquidator was entitled to relief from liability under the Corporations Act 2001 (Cth), and if so, to what extent.

The court concluded that the "ipso facto" clause did indeed operate to remove the trustee company from its obligations under the trust deed. However, the court found that the liquidator was not entitled to relief from liability under the Corporations Act 2001 (Cth). The court held that the removal of the trustee company did not automatically relieve the liquidator from liability, and that the liquidator remained responsible for the trustee company's obligations under the trust deed. The court also noted that the liquidator had not demonstrated that it was just and equitable to grant relief from liability, as required by the relevant provisions of the Corporations Act 2001 (Cth).

The court dismissed the liquidator's application for an order under section 63 of the Trustee Act 1958 (Vic) and refused the application for relief from liability under section 1318 of the Corporations Act 2001 (Cth). The court held that the trustee company's removal from its obligations under the trust deed did not relieve the liquidator from liability, and that the liquidator remained responsible for the trustee company's obligations under the trust deed. The court further held that the liquidator had not demonstrated that it was just and equitable to grant relief from liability, and that the application for relief from liability should be refused.

Orders