Re Fingold Holdings Pty Ltd (in liq)
[2025] WASC 341
•21 AUGUST 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE FINGOLD HOLDINGS PTY LTD (in liq); EX PARTE GREGORY PAUL QUIN as liquidator of FINGOLD HOLDINGS PTY LTD (IN LIQUIDATION) [2025] WASC 341
CORAM: HILL J
HEARD: 1 AUGUST 2025
DELIVERED : 1 AUGUST 2025
PUBLISHED : 21 AUGUST 2025
FILE NO/S: COR 109 of 2025
MATTER: IN THE MATTER OF FINGOLD HOLDINGS PTY LTD (IN LIQUIDATION)
EX PARTE
GREGORY PAUL QUIN as liquidator of FINGOLD HOLDINGS PTY LTD (IN LIQUIDATION)
First Plaintiff
FINGOLD HOLDINGS PTY LTD (IN LIQUIDATION)
Second Plaintiff
Catchwords:
Corporations - External administration - Winding up - Where company in liquidation is bare trustee - Application for appointment of liquidator as receiver and manager of trust property - Turns on own facts
Legislation:
Corporations Act 2001 (Cth) s 477(2), sch 2 s 90-15, s 90-20
Rules of the Supreme Court 1971 (WA) O 51 r 1
Supreme Court Act 1935 (WA) s 25(9)
Supreme Court (Corporations) Rules 2004 (WA) r 2.8
Result:
Application granted
Category: B
Representation:
Counsel:
| First Plaintiff | : | N Malone |
| Second Plaintiff | : | N Malone |
Solicitors:
| First Plaintiff | : | Pragma Lawyers |
| Second Plaintiff | : | Pragma Lawyers |
Case(s) referred to in decision(s):
Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677
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
HILL J:
(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)
By originating process filed 18 July 2025, the plaintiffs seek orders pursuant to s 25 of the Supreme Court Act 1971 (WA) to appoint the first plaintiff as receiver and manager of the Fingold Unit Trust (Trust). They also seek directions pursuant to ss 90-15 and 90-20 of the Insolvency Practice Schedule (Corporations) (IPS) that the first plaintiff is justified in treating the assets of the Trust as assets of the second plaintiff, Fingold Holdings Pty Ltd (Company).
In support of the application, the plaintiffs relied on three affidavits, being:
(a)an affidavit of the first plaintiff and liquidator of the Company, Gregory Paul Quin, filed 18 July 2025;
(b)an affidavit of William James Gilbert, a graduate employed by the plaintiffs' solicitors, filed 25 July 2025; and
(c)an affidavit of James Harrison Maddeford, a lawyer employed by the plaintiffs' solicitors, filed 31 July 2025.
I have also had the benefit of a written outline of submissions, as well as brief oral submissions from counsel who appeared before me at today's hearing.
On the evidence before me, I am satisfied that the originating process and supporting affidavit have been served on the Australian Securities and Investments Commission (ASIC), as required by r 2.8 of the Supreme Court Corporations Rules 2004 (WA), as well as on the Australian Taxation Office (ATO), the major creditor of the Company, and De Lage Landen Pty Ltd (DLL). Neither ASIC nor the ATO have given notice that they wish to be heard on the application.[1] I will address the position of DLL later.
[1] Affidavit of William James Gilbert filed 25 July 2025 [11] - [14], 'WJG-4', 'WJG-5'.
Factual background
The Company was incorporated on 19 July 1996. Its sole director is Christine Gage. The Company is the trustee of the Trust, and in that capacity, carried on business as a provider of carpentry services and a supplier of construction consumables to the construction industry under the business name 'Ortons'.[2]
[2] Affidavit of Gregory Paul Quin filed 18 July 2025 [7], 'GPQ-1'.
On 12 May 2025, Mr Quin was appointed as liquidator of the Company.[3]
[3] Affidavit of Gregory Paul Quin filed 18 July 2025 [6], 'GPQ-3'.
Based on his investigations to date, Mr Quin believes:[4]
(a)the Company only acted in its capacity as trustee of the Trust and did not carry on business in any other capacity;
(b)the Company did not own any assets in its own right, and all its assets were Trust assets;
(c)the Company did not trade or prepare financial statements in its own name; all financial statements were prepared in the name of the Trust;
(d)neither the Company nor the Trust owned any real property; and
(e)the assets of the Trust include three motor vehicles, one of which is subject to a claimed security interest by DLL. [5]
[4] Affidavit of Gregory Paul Quin filed 18 July 2025, 'GPQ-4'.
[5] Affidavit of Gregory Paul Quin filed 18 July 2025 [30] - [38], 'GPQ-15' - 'GPQ-18'.
The liabilities of the Trust include trade creditors, taxation liabilities, a potential shortfall to secured creditors, and a related-party loan account.[6]
[6] Affidavit of Gregory Paul Quin filed 18 July 2025 [11].
The Personal Property Security Register (PPSR) records that a number of creditors have registered security interests over assets of the Company, as well as the Trust. Mr Quin has communicated with these creditors, which has caused two creditors, namely National Australia Bank and Stanley Black & Decker, to discharge their registrations, as their debts have been repaid. Mr Quin has not received responses to his communications from any of the remaining creditors, save for the response received from DLL.[7]
[7] Affidavit of Gregory Paul Quin filed 18 July 2025 [17] - [29].
DLL contends that the Company, both in its own capacity and as trustee for the Trust, granted to it a security interest in a 2023 Isuzu truck (Truck). DLL's solicitors deny that Mr Quin has any right to sell or dispose of the Truck, and has given notice that they intend to seek a declaration in relation to this security interest if orders are made in the term sought by the plaintiffs.[8] The plaintiffs' solicitors do not accept the security interest is valid, but have agreed not to sell the Truck until either the parties reach an agreement, or the court makes a specific order in relation to the Truck.
[8] Affidavit of James Harrison Maddeford filed 31 July 2025 [5], 'JHM-1'.
Among the books and records of the Company is a copy of the Trust Deed. The Trust Deed discloses that the Trust was established on or about 30 July 1996. Pursuant to cl 55(b) of the Trust deed, on the appointment of Mr Quin as liquidator, the Company was required to retire as trustee of the Trust and was disqualified from acting as trustee.[9]
Should the plaintiff be appointed as receiver of the Trust and should the directions sought be made?
[9] Affidavit of Gregory Paul Quin filed 18 July 2025 [12] - [15], 'GPQ-9.
The legal principles that govern this application are well known and can be summarised as follows.
Where a corporate trustee enters into external administration, the company's rights of indemnity and accompanying equitable lien over the assets of the trust survive the appointment. Where a company is removed as trustee of the trust, under the terms of the trust deed, the company retains the right to hold trust assets as a bare trustee. However, the liquidator does not have the power to sell those assets to satisfy that indemnity unless they obtain orders from the court.[10]
[10] See Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq)[2018] FCAFC 40; (2018) 260 FCR 310 [44], [85] ‑ [91], [139], [142], [198]; Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 [22] - [28].
The liquidator has, essentially, two options in these circumstances. First, to apply to be appointed as receiver and manager of the trust, or, alternatively, to apply for an order that confers power on the liquidator to deal with the assets of the trust.
In this case, the plaintiffs seek orders for Mr Quin to be appointed as receiver and manager of the Trust.
Section 25(9) of the Supreme Court Act 1935 (WA) gives the court power to appoint a receiver where it appears to be just and convenient.
Appointing the liquidator of a corporate trustee as receiver of a trust's assets facilitates and simplifies the external administration of the corporate trustee by providing for the trust's business and assets to be under the same control as the corporate trustee while it is in external administration. It also aids in the vindication of the trustee's company's right of indemnity out of the trust assets.[11]
[11] In the matter of Mecfab Holdings Pty Ltd [2015] NSWSC 46 [9].
On the evidence before me, I accept that by reason of cl 55(b) of the Trust deed, on the appointment of Mr Quin as liquidator, the Company was immediately removed from acting as trustee of the Trust. As a consequence, the Company is now a bare trustee and does not have the power to sell or otherwise deal with the assets to vindicate the Company's right of indemnity.
For the following reasons, I accept it is appropriate for Mr Quin to be appointed as receiver and manager of the Trust.
First, this is in accordance with the legal principles that I have already outlined, and will protect the Company's right of indemnity, as well as the position of creditors.
Second, there are other advantages for the proposed order, including that Mr Quin is subject to the regulatory regime that applies to insolvency practitioners, has professional indemnity insurance, and is subject to the continued supervision of the court.
Mr Quin's evidence, which I accept, is that the Company has only acquired assets and incurred liabilities in its capacity as trustee of the Trust. For this reason, I accept it is also appropriate to make directions under s 90-15 of the IPS that Mr Quin was and is acting properly and is justified in proceeding to conduct the affairs of the Trust on the basis that the business and assets of the Company comprised the assets of the Trust.
Conclusion
The plaintiffs sought orders for the cost of the application to be paid from Trust property. In my view, this is the appropriate costs order and I will make that order.
I also accept that the form of orders sought, in terms of service of the court's orders and the allowance for any aggrieved party to apply to this court to vacate or vary these orders, will protect the creditors of the Company from any possible prejudice of the application, with one exception. As discussed with counsel, given the correspondence that passed between DLL and the plaintiffs' solicitors, I consider that the orders require amendment to more accurately reflect what has been agreed between the parties.[12]
[12] As the conclusion of the hearing, I made orders in terms of Annexure 'A'.
ANNEXURE 'A'
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Hon Justice Hill
21 AUGUST 2025
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