Re Dwyer Durack (A Firm); [No 2] - [2024] WASC 296

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE DWYER DURACK (A FIRM); EX PARTE MERVYN JONATHAN KITAY as administrator of DWYERS LEGAL PTY LTD (ADMINISTRATOR APPOINTED) [No 2] [2024] WASC 296
CORAM:   HILL J
HEARD:   19 JULY 2024
DELIVERED          :   19 AUGUST 2024
PUBLISHED           :   19 AUGUST 2024
FILE NO/S:   COR 21 of 2024
MATTER:   IN THE MATTER OF DWYER DURACK (A FIRM)

EX PARTE
MERVYN JONATHAN KITAY as administrator of DYWERS LEGAL PTY LTD (ADMINISTRATOR APPOINTED)
Plaintiff

Catchwords:

Corporations - External administration - Winding up - Where company in liquidation is bare trustee - Application for appointment of liquidator as receiver of trust property - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), sch 2 s 90-15
Rules of the Supreme Court 1971 (WA) O 51 r 1
Supreme Court Act 1935 (WA) s 25(9)

Result:

Orders made and directions given

Category: B

Representation:

Counsel:

Plaintiff

B S Panov

Solicitors:

Plaintiff

Mendelawitz Morton Commercial Lawyers

Cases referred to in decision:

Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20; (2020) 268 CLR 524
Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677
In the matter of Hercules Car Parking Systems (Victoria) Pty Ltd [2018] NSWSC 409
In the matter of Mecfab Holdings Pty Ltd [2015] NSWSC 46
Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310
Re Carrello, in the matter of Gembrook Investments Pty Ltd (in liq) [2019] FCA 1143
Re Dwyer Durack (A Firm); ex Parte Mervyn Jonathan Kitay as administrator of Dwyers Legal Pty Ltd (administrator appointed) [2024] WASC 77
Re O'Keeffe Heneghan Pty Ltd (in liq) [2018] NSWSC 1885
Re Universal Distributing Co Ltd (in Liq) [1933] HCA 2; (1933) 48 CLR 171
Re Victoria Station Corporations Pty Ltd (admins apptd) [2018] VSC 163, (2018) 56 VR 26
Woodhouse v Francis [No 2] [2022] WASC 318
Woods & White v Hopkins [2016] WASC 16

HILL J:

This application concerns the legal partnership that previously traded as Dwyer Durack (Partnership).
The plaintiff is the liquidator of Dwyers Legal Pty Ltd (in liquidation) (Company). The Company was the trustee of both the MLK Practice Trust (MLK Trust) and the PLF Practice Trust (PLF Trust) (the Trusts). The Company in its capacity as trustee for the MLK Trust and separately as trustee of the PLF Practice Trust were the partners (in equal shares) of the Partnership.
On 2 February 2024, the plaintiff was appointed as administrator of the Company pursuant to s 436A of the Corporations Act 2001 (Cth) (Act). On 16 February 2024, the plaintiff filed an originating process seeking orders under s 90-15 of the Insolvency Practice Schedule (Corporations) (IPS) (sch 2 to the Act). At that time, a number of orders sought by the plaintiff could not be made as no resolution had been passed for the winding up of the Company and…

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.

Keep reading for free

Create a free CaseChat account to read Re Dwyer Durack (A Firm); [No 2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] WASC 296
Decision Date: 19 AUGUST 2024

CaseChat Overview and Summary

In the case, Re Dwyer Durack (A Firm); [No 2], the dispute involved the winding up of a company, Dwyer Durack (A Firm), which held assets as a bare trustee. The liquidator of the company applied to be appointed as the receiver of the trust property. The matter was heard in the Supreme Court of Western Australia. The central issue before the court was whether the liquidator, upon the winding up of the company, could be appointed as the receiver of the trust property held by the company in its capacity as a bare trustee.

The court examined the legal principles governing the appointment of receivers and the distinct role of a bare trustee. It considered the statutory framework under the Corporations Act 2001 (Cth) and common law principles regarding the separation of legal and equitable ownership of trust property. The court also analysed the nature of a bare trustee's role, which is limited to holding legal title to the trust property for the benefit of the equitable owners, without any beneficial interest or management rights.

After reviewing the relevant legal authorities and the specific circumstances of the case, the court concluded that the liquidator could be appointed as the receiver of the trust property. The court found that the appointment was appropriate given the liquidator's role in managing the company's assets during the winding-up process and the necessity of ensuring the trust property was protected and managed effectively. The court emphasised that the appointment would not affect the equitable interests of the beneficiaries of the trust.

The final orders of the court were that the liquidator be appointed as the receiver of the trust property held by Dwyer Durack (A Firm). The court's decision provided clarity on the procedure for appointing a receiver in the context of a company acting as a bare trustee that is in liquidation.

Orders