Re Hellenic Hotel Williamstown Pty Ltd (in liq)
[2020] VSC 598
•16 September 2020 (ex tempore); revised 17 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2020 02606
IN THE MATTER OF HELLENIC HOTEL WILLIAMSTOWN PTY LTD
(IN LIQUIDATION) (ACN 166 339 064) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE HELLENIC HOTEL UNIT TRUST
BETWEEN:
| CRAIG PETER SHEPARD AND LEANNE KYLIE CHESSER IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF HELLENIC HOTEL WILLIAMSTOWN PTY LTD (IN LIQUIDATION) (ACN 166 339 064) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE HELLENIC HOTEL UNIT TRUST (and others according to the attached Schedule) | Plaintiffs |
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JUDGE: | Connock J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 September 2020 |
DATE OF JUDGMENT: | 16 September 2020 (ex tempore); revised 17 September 2020 |
CASE MAY BE CITED AS: | Re Hellenic Hotel Williamstown Pty Ltd (in liq) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 598 |
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CORPORATIONS – Winding up – Application for orders under s 90-15 of Schedule 2 – Insolvency Practice Schedule (Corporations) to the Corporations Act 2001 (Cth) – Whether liquidators entitled to be paid their remuneration, costs and expenses under s 556(1) of the Corporations Act 2001 (Cth).
TRUSTS – Corporate trustee required to give notice of intention to retire as trustee upon liquidation – Whether liquidators entitled to treat assets as trust assets – Application for orders under s 90-15 of Schedule 2 – Insolvency Practice Schedule (Corporations) to the Corporations Act 2001 (Cth) empowering liquidators to deal with and dispose of trust assets – Whether distribution of trust property to be governed by Parts 5.5 and 5.6 of the Corporations Act 2001 (Cth) – Application for orders under s 67 of the Trustee Act 1958 (Vic) – Failing to give notice of intention to retire in accordance with trust deed – Section 67 of the Trustee Act 1958 (Vic) applies to trustees not to liquidators.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiffs | Mr Adam Purton | Hall & Wilcox |
HIS HONOUR:
Introduction and Summary
The first plaintiff (Liquidators) were appointed as the liquidators of the 2nd to 23rd plaintiffs (Companies) on 17 March 2020. They were previously administrators of the Companies, having been appointed as such on 10 February 2020.
Twenty of the 22 Companies (Trustee Companies) are trustees of trading trusts (Trusts) and are said to have operated only in that capacity. Details of each of the Trusts and relevant Trustee Companies are set out in Annexure A to these reasons. The trust deeds for each of the Trusts (Trust Deeds) did not provide that the trustees cease to be trustees upon the appointment of liquidators, but each contained a term requiring the trustee to give three months’ notice to the unitholders of their intention to retire as trustees. Further details of the relevant clause (Retirement Clause) are set out later in these reasons.
By their originating process the Liquidators sought a broad range of relief under the Corporations Act 2001 (Cth) (Act) and the Trustee Act 1958 (Vic) (Trustee Act). The relief sought was materially narrowed by the amended originating process filed after various matters were raised with the plaintiffs at a directions hearing shortly before trial. The Liquidators now seek:
(a) Orders under s 90-15 of Schedule 2 — Insolvency Practice Schedule (Corporations) to the Act (Schedule 2) that they are justified and acting reasonably in proceeding on the basis that the Trustee Companies operated only in their capacity as trustees, and in dealing with the trust assets of each of the Trusts in accordance with Parts 5.5 and 5.6 of the Act.
(b) Remuneration related orders under s 90-15 of Schedule 2 in relation to each of the Trusts that the Liquidators are justified and acting reasonably in proceeding on the basis that:
(i) they are entitled to be paid their remuneration, costs and expenses properly incurred from the trust assets;
(ii) the remuneration, costs and expenses include the costs of and incidental to this application, and are to be paid in accordance with the priority specified in s 556(1) of the Act.
(c) Orders pursuant to s 67 of the Trustee Act in relation to each of the Trusts that the Liquidators be relieved from any personal liability in respect of:
(i) not causing the Trustee Companies to give notice of their intention to retire as trustees of the Trusts following their appointment as the Liquidators;
(ii) dealing with the trust assets, including for the purpose of realising those assets, between the date of their appointment and the date of any order made in this proceeding.
No relief was sought in respect of the two non-trustee companies (the 6th and 21st plaintiffs), which the court was informed were joined to the proceeding for convenience or completeness in case they were considered to be or became necessary parties.
All or nearly all of the substantive steps in the liquidations are said to have been completed and the relief sought is directed at facilitating the completion of the winding up of the Companies and the Trusts.
For the reasons that follow, and subject to addressing the precise terms of the orders with the plaintiffs, I propose to make orders:
(a) pursuant to s 90-15 of Schedule 2 to the Act to the substantive effect sought in relation to: the Trustee Companies operating in their capacity as trustee only; dealing with the trust assets in accordance with Parts 5.5 and 5.6 of the Act; and the Liquidators’ remuneration, costs and expenses;
(b) pursuant to s 67 of the Trustee Act relieving the Trustee Companies[1] from any personal liability for not having given notice of an intention to retire in the manner specified in the Retirement Clause in each of the Trust Deeds between the date of the appointment of the Liquidators and the date orders are made in this proceeding; and
(c) dealing with publication of final orders in this proceeding and reserving liberty to apply.
[1]As opposed to the Liquidators.
At this point orders will not be made relieving the Trustee Companies of any personal liability in relation to their dealings with trust assets between the date of their appointment[2] and the date the proposed orders are made. This is not intended to affect and does not affect any of the Trustee Companies’ rights to apply in future for orders pursuant to s 67 of the Trustee Act should it be considered necessary or desirable to do so.
Evidence and Background
[2]As administrators or liquidators.
The applications were supported by three affidavits of one of the Liquidators, Ms Chesser; two affidavits of Ms Rossignuolo, the solicitor for the plaintiffs; and what were described as affidavits of service of Ms Claire Lee, Ms Pennington, Ms Suzanne Lee, and Mr Perera, all of which have been considered. The plaintiffs also relied upon a revised written outline of submissions filed on 15 September 2020 and a chronology filed on 28 August 2020.
The background was set out in the affidavits of Ms Chesser and Ms Rossignuolo and further addressed in the written submissions and chronology. Although it is not necessary to recite all of its detail, it is convenient to mention the following.
The group of Companies (Group) was founded by Mr George Calombaris and carried on the businesses of Greek restaurants and fast food outlets based in Melbourne.
On 10 February 2020 the Liquidators were appointed joint and several administrators of the Companies under s 436A of the Act. At the time the Liquidators were appointed as administrators the Group operated from 12 locations, consisting of five restaurant venues and seven venues operating as fast food restaurants.
Investigations conducted revealed that: 20 of the 22 Companies operated as trading trusts; 13 of the 22 Companies (being the 2nd to 14th plaintiffs) were operating entities with employees; and 9 of the 22 Companies (being the 15th to 23rd plaintiffs) were non-operating entities with no employees.
The Trust Deeds for each of the Trusts contained the Retirement Clause, which was in the following terms:[3]
[3]Counsel for the plaintiffs helpfully confirmed at the hearing that he had personally examined all of the Trust Deeds for each of the Trusts and that they each contained the Retirement Clause as clause 21.
21. Appointment Retirement and Removal of the Trustee
21.1The Trustee shall act as the Trustee of the Trust Fund in accordance with the terms and conditions of this Deed.
21.2The Trustee may upon giving three (3) months notice in writing to all Unit Holders of its intention to do so retire as the Trustee of the Trust Fund.
21.3The retirement of the Trustee shall not take effect until a general meeting of Unit Holders has been called to consider the appointment of a new Trustee and the new Trustee has executed the Deed provided for below.
21.4The Trustee shall give notice of retirement in accordance with 21.2 if the Trustee being a company goes into liquidation or if a receiver manager or official manager of any of its assets or undertaking is appointed.
21.5 The Unit Holders may by special resolution:
(a) remove the Trustee,
(b) appoint an additional Trustee,
(c)appoint a Trustee in place of a Trustee who has retired or is disqualified or removed.
21.6The Trustee shall on retirement or removal take such action as is necessary to vest in the Trust Fund or cause the Trust Fund to be vested in the new Trustee appointed under the provisions of this Clause and deliver to the new Trustee all books documents records and other property of the Trust Fund.
21.7Any new Trustee appointed shall execute a Deed in which the new Trustee shall assume all liabilities of the Trustee of this Deed.
21.8Upon the appointment of a new Trustee and execution by the new Trustee of the Deed referred to in Clause 21.7 the retiring Trustee shall from the date of effect of the retirement of the retiring Trustee be released from all further obligations under this Deed.
Upon appointment as administrators the Liquidators immediately assumed control of the Group’s operations and assets and communicated with all key stakeholders including employees, secured creditors, customers, landlords, suppliers and other trade creditors, as well as implementing controls around banking and expenditure.
The investigations undertaken established that the Trustee Companies operated in their capacity as trustees only and that, putting to one side rights of indemnity and exoneration, all assets and liabilities were assets and liabilities of the relevant Trusts. This was supported by, among other things, the Liquidators’ enquiries, financial documents including tax returns, the Aggregated Special Purpose Financial Report for the Group for the year ended 30 June 2018, ABNs being recorded only in connection with the Trusts, and the registration dates of the Trustee Companies coinciding with dates of the Trust Deeds establishing the various Trusts.
When the Companies were in administration the Liquidators (then administrators) took numerous steps in connection with the administration. These were detailed in Ms Chesser’s affidavits and included, for example: financial review and cessation of trade; preserving and securing assets; debtor recoveries; dealing with leases; organising expressions of interest; dealing with asset sales of the Group’s main assets which comprised plant, equipment and inventory located at the various venues; dealing with and terminating the employment of 364 employees following the decision to cease trading; given the likelihood of insufficient funds to meet outstanding employee entitlements, commencing discussions with the Commonwealth Government’s Fair Entitlements Guarantee Scheme to establish accounts for each of the employing entities; identifying parties with PPSR registrations and dealing with the registrations; dealing with bank accounts; attending to media inquiries; reviewing and dealing with payments during the administration; communicating with secured creditors; reviewing valuations; closing off of financial records; assessing creditor claims; and related matters. Some of the details of asset sales undertaken were referred to and summarised by Ms Chesser in her affidavits.
The first creditors’ meeting was held on 20 February 2020 and there was no proposal from the creditors present at the meeting to appoint a committee of inspection for any company in the Group. On 10 March 2020 the administrators issued their report to creditors.
On 17 March 2020 the second meeting of creditors was held pursuant to s 439A of the Act and it was resolved by the creditors that pursuant to s 439C of the Act each company in the Group be wound up. No alternative liquidator was nominated and the Liquidators were appointed joint and several liquidators of each of the Companies.
The majority of the assets of the Companies were sold while the Companies were in administration. These sales were prioritised so that, so far as possible, assets could be sold in situ during the five-day rent-free period afforded to administrators under s 443B of the Act.
In their current and former capacities the Liquidators encountered some challenges in relation to the compilation of complete books and records for the Companies and Trusts, although the evidence reveals that concerted efforts have been made to compile as reliable information as is reasonably possible, including information regarding the current unitholders of the Trusts, some of which are plaintiff companies.
Having investigated and considered the financial position of the Companies, the Liquidators established that the liabilities of each of the Companies exceeded their assets by many millions of dollars. Details were also set out in the Liquidators’ statutory report of 15 June 2020 (referred to further below).
Ms Chesser deposed that it is not expected that there will be a return to any unsecured creditors of any of the Companies.[4]
[4]The major creditors of the Group are said to be the Commonwealth Bank of Australia (CBA), Super Radek Pty Ltd and Kednel Pty Ltd. The court was informed that the CBA has priority and that it will be left with a material deficiency.
On 15 June 2020 the Liquidators issued the statutory report earlier mentioned in which a summary of the tasks that had been undertaken to date was contained and the tasks remaining were referred to. Ms Chesser stated that substantial progress had been made in the liquidations of all of the Companies with only limited tasks remaining. These included: continuing to liaise with the Fair Entitlements Guarantee Scheme so as to assist in progressing the verification and assessment of the remaining eligible employee claims; the realisation of any remaining assets, which were very limited but may include aspects of the Group’s intellectual property; dealing with post-completion issues connected with the sale of business assets and assignment of leases, including recovery of the balance of any existing bank guarantees; payment of expenses incurred during the liquidations; payment of further distributions to the primary secured creditor, CBA; and attending to other statutory requirements and related matters.
This proceeding was commenced on 17 June 2020.
The Liquidators finalised the liquidation of the 21st plaintiff, which was a non- operating company, on 25 June 2020 and lodged their end of administration return form with ASIC that day. Ms Chesser deposed that, except for the 22nd plaintiff (JGIP), the Liquidators were in a position to finalise the liquidations of the remaining ‘… Dormant / non-employing entities …’, being the 15th to 21st plaintiffs and the 23rd plaintiff. In the statutory report the Liquidators recorded that they anticipated the liquidations of the remaining Companies, being the 2nd to 14th plaintiffs, would be completed within 12 months of the date of the report. That period of time relates largely to the time needed to deal with the Fair Entitlements Guarantee Scheme. Ms Chesser’s affidavit also set out a summary of the status of the liquidations and asset sales in relation to each of the 22 Companies.
JGIP holds intellectual property on behalf of the Group and the Liquidators may undertake a sale process in relation to intellectual property assets prior to the liquidation being finalised. This decision has been delayed due to current COVID-19 impacts. It is possible that there may be limited interest in the intellectual property because of the significant reputational damage suffered by the Group to date.
Prior to being appointed administrators the Liquidators were aware of the terms of the Retirement Clause in the Trust Deeds. Ms Chesser said that because the appointment as administrators did not change the trustee status or require the administrators to take any steps during the appointment, they proceeded with dealing with the assets on the basis that the Companies remained trustees. Ms Chesser said that further consideration was given to this issue when they were appointed Liquidators on 17 March 2020, and advice was obtained[5] which resulted in this application being commenced. The advice was received on 1 April 2020.
[5]Which was provided to the court on a confidential basis and over which legal professional privilege was maintained.
Prior to bringing the application but after receipt of the advice, on 2 April 2020 Ms Chesser engaged in discussion with the CBA and informed it of the need to bring the application and sought its approval to proceed, noting that Ms Chesser was conscious that costs of the application would be paid from the proceeds of secured assets. Approval was given by the CBA on 6 May 2020 and the originating process together with Ms Chesser’s first affidavit was filed on 17 June 2020.
No steps have been taken by any unitholders[6] or anyone else to seek to appoint a new trustee to any of the Trusts and no request has been made to the Liquidators or anyone else that they cause one or more of the Trustee Companies to resign, retire, or seek to appoint a new trustee.
[6]The Trust Deeds provide a right to unitholders to remove a trustee of the trust by giving notice requiring a meeting of unitholders to be convened within 21 days of the notice to vote on the issue.
Notice
The evidence established that sufficient notice of the proceeding had been given to potentially interested parties. The creditors were informed in the statutory report of 15 June 2020 that an application was to be made by the Liquidators for orders ‘… which would allow the Trustee Companies to be allowed to continue to act as trustees despite the relevant retirement provisions of the trust deeds …’.[7] Detailed affidavit material was also filed in relation to the giving of notice to ASIC, all known unitholders of each Trust, and secured creditors.
[7]At paragraph [2.2.6] which was headed in bold type: ‘Application to court in relation to trust matters’.
ASIC informed the Liquidators that it did not intend to appear or intervene and that it considered the application to be a matter for the court. No unitholders, secured or unsecured creditors, or any other person notified the Liquidators or the court that they wished to be heard or to appear.
Key provisions relied upon
For ease of reference relevant parts of the terms of the key statutory provisions relied upon by the Liquidators are set out below.
Section 90-15 of Schedule 2
Section 90-15 of Schedule 2 to the Act is in the following terms:
90-15 Court may make orders in relation to external administration
Court may make orders
(1)The Court may make such orders as it thinks fit in relation to the external administration of a company.
Orders on own initiative or on application
(2)The Court may exercise the power under subsection (1):
(a)on its own initiative, during proceedings before the Court; or
(b)on application under section 90-20.
Examples of orders that may be made
(3)Without limiting subsection (1), those orders may include any one or more of the following:
(a)an order determining any question arising in the external administration of the company;
(b)an order that a person cease to be the external administrator of the company;
(c)an order that another registered liquidator be appointed as the external administrator of the company;
(d)an order in relation to the costs of an action (including court action) taken by the external administrator of the company or another person in relation to the external administration of the company;
(e)an order in relation to any loss that the company has sustained because of a breach of duty by the external administrator;
(f)an order in relation to remuneration, including an order requiring a person to repay to a company, or the creditors of a company, remuneration paid to the person as external administrator of the company.
Matters that may be taken into account
(4)Without limiting the matters which the Court may take into account when making orders, the Court may take into account:
(a)whether the liquidator has faithfully performed, or is faithfully performing, the liquidator’s duties; and
(b)whether an action or failure to act by the liquidator is in compliance with this Act and the Insolvency Practice Rules; and
(c)whether an action or failure to act by the liquidator is in compliance with an order of the Court; and
(d)whether the company or any other person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the liquidator; and
(e)the seriousness of the consequences of any action or failure to act by the liquidator, including the effect of that action or failure to act on public confidence in registered liquidators as a group.
Costs orders
(5)Without limiting subsection (1), an order mentioned in paragraph 3(d) in relation to the costs of an action may include an order that:
(a)the external administrator or another person is personally liable for some or all of those costs; and
(b)the external administrator or another person is not entitled to be reimbursed by the company or its creditors in relation to some or all of those costs.
Orders to make good loss sustained because of a breach of duty
(6)Without limiting subsection (1), an order mentioned in paragraph (3)(e) in relation to a loss may include an order that:
(a)the external administrator is personally liable to make good some or all of the loss; and
(b)the external administrator is not entitled to be reimbursed by the company or creditors in relation to the amount made good.
Section does not limit Court’s powers
(7)This section does not limit the Court’s powers under any other provision of this Act, or under any other law.
Section 67 of the Trustee Act provides as follows:
67 Power to relieve trustee from personal liability
If it appears to the Court that a trustee, whether appointed by the Court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the Court in the matter in which he committed such breach, then the Court may relieve him either wholly or partly from personal liability for the same.
Consideration and Disposition
The directions and orders sought are considered in turn below.
Section 90-15 direction that the Liquidators are justified in proceeding on the basis that the Trustee Companies operated only in their capacity as trustees of their respective trusts and that their respective assets are trust property and that the possession, realisation and distribution of trust property is governed by Parts 5.5 and 5.6 of the Act
Submissions
The Liquidators submitted that the power in s 90-15 is broad and is informed by the principles that applied to the exercise of the directions power previously contained in ss 479(3) and 511 of the Act. Citing recent cases in this court, it was submitted that it was common for liquidators of corporate trustees to seek directions on the basis that the assets of a trustee company are properly characterised as property held in its capacity as trustee, and that the realisation and distribution of such assets should be governed by Parts 5.5 and 5.6. Such orders were said to be guidance on matters of law, as identified in El-Saafin & Anor v Franek & Ors (No 2) (El-Saafin),[8] and said to be appropriate in the light of the High Court’s decision in Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia & Ors (Carter Holt Harvey).[9]
[8][2018] VSC 683.
[9](2019) 368 ALR 390; [2019] HCA 20 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
It was submitted that the evidence before the court was that the Trustee Companies operated only in that capacity and that the assets and liabilities were assets and liabilities of the relevant Trusts only. It was said that there was no suggestion or evidence that trust property might be available to creditors who were not trust creditors. Reference was also made to the approach adopted in Re St George’s Development Company Pty Ltd (in liq) (St George’s Development),[10] Re Matthew Forbes Pty Ltd (in liq) (Re Matthew Forbes),[11] and Re Pako Supermarkets Pty Ltd (Pako Supermarkets).[12]
[10][2018] VSC 595.
[11][2018] VSC 331.
[12][2020] VSC 487.
Counsel for the plaintiffs also confirmed that the Liquidators had not identified any matters giving rise to possible or potential relevant conflicts of interest between one or more of the Companies and Trusts that needed to be considered or addressed in the present context.
Consideration and disposition
The Companies are all in external administration and no question of standing arises. See ss 90-20 and 5-15 of Schedule 2.
As observed in Pako Supermarkets, it is uncontroversial that the power conferred by s 90-15 is a broad one, as emphasised by Sloss J in Re Mandeville Group Pty Ltd (In Liq) (Mandeville Group).[13] I refer also to the helpful observations made by Sloss J in that case regarding the nature and scope of an application for directions by liquidators and trustees.[14]
[13][2020] VSC 293, [139]–[141].
[14]Ibid, [128]–[138].
I further refer to the observations of Robson J in Commonwealth v Byrnes (in their capacity as joint and several receivers and managers of Amerind Pty Ltd (receivers and managers appointed) (in liq) (Re Amerind)[15] regarding factors that may be taken into account when considering the question of the capacity in which insolvent corporate trustees previously operated and held assets. As was submitted and others have observed, such matters are not suggested to be exhaustive, there is no determinative criteria, and each case necessarily depends on its own facts.[16]
[15][2017] VSC 127. Overturned on appeal but not in relation to this aspect. See [2018] VSCA 41 (Ferguson CJ, Whelan, Kyrou, McLeish and Dodds-Streeton JJA).
[16]As was recently emphasised by Anastassiou J in In the matter of Balub Pty Ltd (in liq) 2020 FCA 741 at [15].
Having regard to the evidence, and particularly that of Ms Chesser, it is in my view appropriate to make an order to the substantive effect sought in respect of each of the Trustee Companies. The Liquidators have been involved with the affairs of the Companies over an extended period, including as former administrators. They have carried out investigations and concluded on the basis of information obtained by them that each of the Companies did not trade, hold assets or incur liabilities other than in their capacity as trustees. This was also supported by the documentary evidence earlier referred to, including financial statements, the Group financial report for 2018, tax returns and the Trust Deeds — and also by the timing of incorporation of the Trustee Companies and the time at which each of the Trusts was established.
Further, none of the unitholders or anyone else has sought to be heard or suggest otherwise and, subject to one small matter that was explained by Ms Chesser and is of no consequence, there was no evidence to suggest that the Trustee Companies operated other than in their capacities as trustees of their respective trusts.
The small matter of no consequence was the inclusion in Ms Chesser’s affidavits of occasional references to one or more of the Trustee Companies acting ‘… in its own capacity and as trustee ...’. This was drawn to the plaintiffs’ attention at the directions hearing shortly before trial and in her third affidavit Ms Chesser explained, and I accept, that the reference to any Trustee Companies acting ‘in its own capacity’ was inadvertent. So much was also confirmed by counsel at the hearing. In any event, the evidence was otherwise all one way.
In the circumstances, the Liquidators are justified in proceeding on the basis that each of the Trustee Companies acted in its capacity as trustee of its respective trust only, and that the property of each of the Trustee Companies is trust property.
As in other cases, it was submitted that making a direction regarding Parts 5.5 and 5.6 of the Act was consistent with the decisions of the Court of Appeal in Re Amerind and the Full Court of the Federal Court in Jones (in his capacity as liquidator of Killarnee Civil & Concrete Contractors Pty Ltd (ACN 085 230 486) (in liq)) v Matrix Partners Pty Ltd (Re Killarnee)[17] to the effect that a corporate trustee’s right of indemnity out of trust assets is property of the company, and that the priority regime in the Act applies to the distribution of trust property in the winding up of a corporate trustee. Attention was again drawn to the recent decisions in St George’s Development, Re Matthew Forbes, Mandeville Group and Pako Supermarkets.
[17](2018) 260 FCR 310.
Having regard to the above and the matters addressed in the evidence, it is in my view also appropriate to make orders to the substantive effect sought by the Liquidators in relation to Parts 5.5 and 5.6 of the Act. As was submitted (and observed by Kennedy J in St George’s Development and Riordan J in Re Matthew Forbes), the Full Federal Court in Re Killarnee concluded that a corporate trustee’s right of indemnity out of the trust assets is property of the company and the priority regime in the Act applies to the distribution of trust property in the winding up of a corporate trustee.[18]
[18]Ibid [95]–[99] (Allsop CJ).
I also accept that there was no suggestion in the evidence that trust property of any of the Trusts might be available to creditors who were not trust creditors. As I did in Pako Supermarkets, I add for completeness that since the decision in St George’s Development the High Court has decided in Carter Holt Harvey that the proceeds from an exercise of a corporate trustee’s right of indemnity or exoneration in respect of trust liabilities may only be applied in satisfaction of trust liabilities to which that right relates.[19] Counsel for the Liquidators confirmed that this approach is being followed by the Liquidators.
[19]Ibid, [92] (Bell, Gageler and Nettle JJ). See also Gordon J at [167]–[172] and Re Killarnee at [99]–[109] (Allsop CJ).
Orders of the character described in the heading to this section of the reasons are appropriate and will enable the property of each of the Trusts to be dealt with on the basis that it is governed by Parts 5.5 and 5.6 of the Act.
Section 90-15 direction that the Liquidators are justified in proceeding on the basis that remuneration and expenses properly incurred may be paid from the trust property, to be paid in accordance with s 556(1) of the Act
Submissions
As in Pako Supermarkets, it was submitted that the Liquidators’ remuneration and expenses were debts incurred in performing the various Trusts as the Trustee Companies only operated as trustees, and therefore they may be indemnified out of the relevant trust funds in the priority provided for under s 556(1) of the Act. The Liquidators relied upon the observations of Kennedy J and Riordan J in St George’s Development and Re Matthew Forbes respectively, and my observations in Pako Supermarkets, in which I respectfully referred to the observations of Allsop CJ and Farrell J in Re Killarnee.[20]
Consideration and disposition
[20](2018) 260 FCR 310 [105]–[106], [201].
Subject to addressing one matter with counsel for the Liquidators regarding the precise form of orders and what is proposed in relation to each of the different Trusts, it is appropriate to make orders to the effect sought regarding the Liquidators’ remuneration and expenses properly incurred being paid from trust property in accordance with s 556(1) of the Act. Having regard to the above, and keeping in mind that all of the creditors of each Trustee Company are trust creditors and that the Trustee Companies have only ever operated as trustees of their respective Trusts, it is again[21] sufficient in this context to refer generally and without elaboration to the observations of Brereton J in Re Stansfield DIY Wealth Pty Limited (in liquidation);[22] Riordan J in Re Matthew Forbes;[23] Kennedy J in St George’s Developments and in Re Mackie Group Pty Ltd;[24] Sloss J in Mandeville Group[25] — who, in turn, placed emphasis upon the observations of Gordon J in Carter Holt Harvey;[26] and of Allsop CJ in Re Killarnee.[27]
Orders pursuant to s 67 of the Trustee Act that the Liquidators be relieved from any liability for not giving notice of intention to retire in accordance with the Trust Deeds and for any dealings with the property of the Trusts since their appointment
Principles and observations – s 67 of the Trustee Act
[21]As I did in Pako Supermarkets at [58].
[22][2014] 291 FLR 17, [2014] NSWSC 1484, [7].
[23]At [27]–[30].
[24][2017] 122 ACSR 537, [50]–[64].
[25]At [209].
[26]At [169]–[172].
[27]At [99]–[109].
No issue of principle arose in relation to the operation of s 67 of the Trustee Act and the submissions and observations made by the plaintiffs in this context included the following.
Historically, trustees were under a duty to closely adhere to the terms of the trust and liability of trustees was exceedingly strict. It was not until the enactment in England of s 3 of the Judicial Trustees Act 1896 that liability was relaxed such that the Court was empowered to relieve a trustee who had acted honestly and reasonably and who ought fairly be excused for the breach.[28]
[28]J D Heydon and M J Leeming, Jacob’s Law of Trusts in Australia (8th ed, 2016), 545 [22]–[12]; Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484 at [32]); Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [184].
The relevant principles in relation to the Court’s discretion under s 67 of the Trustee Act were recently considered by McMillan J in Re Sir Colin and Lady MacKenzie Trust (No 2)[29] as follows:
The Court’s discretion is enlivened in circumstances where ‘it appears to the Court that a trustee…is or may be personally liable for any breach of trust’. It is not necessary for the exercise of the jurisdiction that the Court has made a positive finding of breach, it is enough that the Court is of the opinion that the trustee may be under some personal liability. This does not, however, allow the Court to relieve a trustee from liability associated with some anticipated future breach.
The requirements of s 67 are cumulative — an applicant must satisfy the Court that they acted honestly and reasonably, and ought fairly be excused for the breach in all of the circumstances of the case. It is not sufficient for an applicant to show compliance with just one of the elements prescribed in the Act.[30]
[29][2020] VSC 335. Counsel for the plaintiff also properly drew attention to factual matters in the case that might not favour the plaintiffs but submitted that the facts were distinguishable, which I accept.
[30]Ibid [23]–[24] (footnotes omitted).
As to the standard of honesty and reasonableness, McMillan J observed in Re Sir Colin and Lady MacKenzie Trust (No 2) that:
Honesty and reasonableness are to be viewed objectively, by reference to the welfare and interests of the trust. The Court must consider whether the trustee’s actions were in good faith, and whether they acted with a degree of prudence that a person of ordinary intelligence and diligence would be expected to exhibit in the conduct of his or her own affairs. That standard does not, however, require that the trustee engage in best practice in all respects. As the requirements are cumulative, honesty on the part of the trustee will not excuse actions that are nonetheless unreasonable. Unreasonableness may be identified by reference to several factors, including a failure to seek legal advice, or undue reliance upon another person. Although negligence on the part of a trustee may be indicative of a want of honesty or reasonableness in a trustee’s actions, mere negligence is not in itself disentitling.[31]
[31]Ibid [26] (footnotes omitted).
Courts have emphasised that when considering the discretion, each case must turn on its own facts but the section is meant to be acted upon freely and fairly.[32]
[32]Re Sir Colin and Lady MacKenzie Trust (No 2) [2020] VSC 335 at [25]; J D Heydon and M J Leeming, Jacob’s Law of Trusts in Australia (8th ed, 2016), 546 [22]–[12], citing Re Hurst (1892 62 LT 96; Re Kay [1897] 2 Ch 518 and Re Turner ]1897] 1 Ch 536.
To the observations of the plaintiffs may be added the observation of Gordon J in Caterpillar Financial Australia Limited v Ovens Nominees Pty Ltd[33] that s 67 will not assist a trustee which has failed to adduce evidence of honesty and reasonableness, noting also her Honour’s reference to the Privy Council’s observations (when dealing with the equivalent provision in the United Kingdom in National Trustees Co of Australasia Ltd v General Finance Co of Australasia Ltd[34]) that:[35]
Unless both [honesty and reasonableness] are proved the Court cannot help the trustees; but if both are made out, there is then a case for the Court to consider whether the trustee ought fairly to be excused for the breach, looking at all the circumstances.
[33][2011] FCA 677 at [39].
[34][1905] AC 373 (PC) at 381.
[35]Reference was also made to Re Stuart [1897] 2 Ch 583 at 592 and Wilkie v McCalla (No 3) [1905] VLR 278 at 286, 293.
It has been said that the jurisdiction requires care and caution in its exercise. Honesty is viewed objectively and the trustee must have acted in good faith for the welfare of the trust. Reasonably means reasonably in the interests of the estate, not the trustee. Further, relief does not follow as a matter of course if honesty and reasonableness is established. The court must then look to all of the circumstances to ascertain whether the trustee ought to be fairly excused for the breach and any failure to obtain directions. Fairly has been said to mean in fairness to the trustees and other persons who may be affected. It has also been observed that although a breach is wrong in law, circumstances may arise where relief is appropriate if the course taken was sensible and the trust suffered no loss and was not in any way prejudiced. It may also be relevant to consider whether the conduct constituting the breach would have been authorised had the trustee applied for such authorisation. [36]
[36]Regarding these observations, see Halsbury’s Laws of Australia at [430-5520]-[430-5545] and the cases there cited.
The plaintiffs also addressed a number of differences between s 1318 of the Act and s 67 of the Trustee Act. These need not be considered further because after various matters were raised at a directions hearing shortly before trial, the Liquidators (responsibly) concluded that s 1318 was not engaged in the circumstances and they did not press their application under s 1318. I add for completeness that the Liquidators also did not press their application for an order under s 90-15 of Schedule 2 that the ‘… Liquidators were justified and acting reasonably in not giving notice of their intention to retire as trustees of the respective trusts …’.[37]
Submissions
[37]To which I add that it would be the Trustee Companies who were required to give notice, not the Liquidators.
As to why an order of the kind sought should be made under s 67 of the Act, the Liquidators submitted as follows.
The Retirement Clauses in the Trust Deeds were unusual because they did not provide that the office of trustee would be vacated or terminated upon a liquidator being appointed to the relevant company.
The Liquidators formed the view that it would not be a proper exercise of their powers to resign as trustee, but also formed the view that it would be improper to ignore the express requirements of the Trust Deeds.
It was ‘… reasonable for the Liquidators to bring this application …’ for a range of reasons, including:
(a) Giving notice being inconsistent with the Liquidators’ duties to wind up the affairs of the Companies, because if they had retired or resigned it would have left the assets being held by the Trustee Companies as bare trustees without a power of sale. This, so it was said, would have created an impediment to complying with their statutory functions as Liquidators which could only have been remedied by an application under s 63 of the Trustee Act.
(b) No alternative trustee had been put forward by any unitholder for any of the Trusts, again said to give rise to the bare trustee issue.
(c) There were some limited deficiencies in the books and records of the Trustee Companies, including in relation to the identification of unitholders.[38]
(d) Given the challenges faced in the liquidations and the terms of the Retirement Clause, the giving of notices and the calling of meetings of unitholders to try and secure the appointment of new trustees would have been disproportionately time consuming and costly.
(e) Because some unitholders were Trustee Companies, the calling of meetings would have required the Liquidators to vote on a matter that might impact on the continuation of their office as liquidators.
[38]Although the position improved to some degree in the context of pursuing this application, as the affidavit material revealed.
The Liquidators obtained advice and made the application so as to disclose to the court what might be regarded as a breach of trust that arose because of the unusual clause and circumstances, which did not easily allow for the issue to be addressed in the way that has occurred in other cases — emphasising also that no case had been found in which a similar trust deed provision had been considered.
Consideration was given to whether the Liquidators ought to seek an order that they be appointed as receivers and managers of the trust property of each of the Trusts, but they decided on advice not to follow that course. It was considered to be inappropriate given: the stage of the liquidations; the businesses having ceased trading; all or nearly all assets having been sold; the liquidations of seven of the Trustee Companies being ready to be finalised; and the remaining liquidations also being ready to be finalised subject to allowing a period of time for employees to lodge claims with the Fair Entitlements Guarantee Scheme.
Section 90-15 of Schedule 2 did not assist because it would not be appropriate for the Liquidators or the court to seek to utilise that section to obtain a direction that the Liquidators act in breach of trust.
The court could be satisfied that the Liquidators have acted honestly because their decision not to give notice of an intention to retire was made in conjunction with their decision to make an application to the court. Further, the Liquidators did not derive any personal benefit from the failure to give notice and they were motivated by the interests of the Trusts and ensuring that the liquidations of the Trustee Companies proceeded efficiently notwithstanding the challenges faced.
Because of the matters referred to above, the Liquidators acted reasonably in bringing the application, which was brought in a timely way and on advice.
Consideration and disposition
In the originating process and the amended originating process the relief relevantly sought was that the ‘Liquidators’ be excused from personal liability pursuant to s 67 of the Trustee Act. Although it is not uncommon to see applications drafted in this way,[39] particularly when made alongside or in the alternative to an application under s 1318 of the Act[40] (as initially occurred here), it is immediately apparent from the terms of s 67 of the Trustee Act that any application pressed in this way is bound to fail. This is because the terms of the section make plain that it only engages with ‘a trustee’, and that the only person that may be excused from personal liability pursuant to s 67 is the relevant trustee. A liquidator of a corporate trustee does not become the trustee of the relevant trust by reason of his or her appointment as liquidator, and s 67 of the Trustee Act does not provide the court with any direct powers in respect of such a liquidator.
[39]And there are decisions in which such orders have been expressed in this way where it appears the issue has not been drawn to the attention of the court.
[40]Which, given its different terms, does provide the power to make orders in favour of liquidators.
As things transpired at the hearing, the application was not ultimately pressed in this way and counsel for the plaintiffs clarified that, however the application was expressed, the orders were now sought on behalf of each of the Trustee Companies — which of course were relevantly controlled by the Liquidators. That was an appropriate course for the plaintiffs to adopt and it did not in the present circumstances require further notice to be provided to potentially interested parties given the notice previously given.
Taking into account the circumstances as set out in the affidavits and referred to in a summary way earlier in these reasons, I am satisfied that it is appropriate to make an order pursuant to s 67 of the Trustee Act excusing each of the Trustee Companies for any personal liability for any breach of trust by failing to date to give notice of an intention to retire as trustee as contemplated by the Retirement Clause in each of the Trust Deeds. This is because, in relation to this conduct, it has been established that each of the Trustee Companies, through the Liquidators, acted honestly and reasonably and ought fairly to be excused for any such breach and for not obtaining directions prior to the making of this current application. I elaborate below.
No issue arises with respect to the honesty of the Liquidators or their conduct and it is readily apparent from the evidence that they have acted honestly. Not only is this exposed by Ms Chesser’s full and open explanation of the position in the somewhat unusual and challenging circumstances faced given the funds available and related matters, but it is also reinforced by the Liquidators seeking advice and acting upon it. It is also established on the evidence that the Trustee Companies, through the Liquidators, acted in good faith and with the interests of the Trusts in mind.
That the Trustee Companies acted reasonably in acting as they did in not giving notice of intention to retire is also established on the evidence. Again, this was established by Ms Chesser’s full and open explanation and the supporting documents. Among other things, that explanation properly referred to the Liquidators’ awareness of the issue whilst acting as administrators — where it was correctly recognised that the Retirement Clause did not engage — and exposed that the issue was actively considered and addressed on advice with the interests of the Trusts in mind, particularly given the unusual and somewhat cumbersome mechanism contemplated by the Retirement Clause given the circumstances. Appropriate consideration was given to the material costs and challenges to be encountered to the detriment of the Trusts if the terms of the Retirement Clause had been complied with instead of the Liquidators approaching the court as they have.
Further, and as was submitted, even if the Retirement Clause procedure had been followed, it contemplated 90 days’ notice of an intention to retire to be given[41] but any such intended retirement not taking effect until meetings of unitholders had been called and new trustees appointed, all of which would have taken considerable further time even if it could have been achieved at all — which appeared on the evidence to have been unlikely. Again the evidence demonstrated that in approaching the matter as they did, and obtaining and acting on advice, the Trustee Companies through the Liquidators were not acting for reasons of self-interest or personal gain and were taking what were regarded as and can be seen to be reasonable steps given the conundrum posed by the Retirement Clause in the circumstances then existing.
[41]As opposed to a notice of actual retirement or resignation effective in 90 days.
That this was the Liquidators’ considered position is supported by the obtaining of advice, the Liquidators’ seeking funding from the secured creditor, and seeking to bring an application before the court relatively promptly. This was all sufficiently and openly explained by Ms Chesser. It was also the case that no unitholder of any of the Trusts sought to engage the straightforward change of trustee procedure in the Trust Deed.
Whilst there were alternative courses open to the Liquidators, including earlier seeking to have the Trustee Companies retire as trustees and seeking orders under s 63 of the Trustee Act, or appointing the Liquidators as receivers over the trust assets of each of the Trusts, it is apparent that such matters were considered, although in a perfect world perhaps this could have happened a little earlier than it did. Ms Chesser also explained why these alternative courses were not followed, aspects of which had force given what had occurred and been achieved through the administration period. It is also to be remembered that the criterion currently under consideration is one of reasonableness, not perfection, and one which is be considered taking into account the circumstances faced at the time rather than viewing the circumstances solely through the lens of hindsight.
It is also material that there was no evidence of any prejudice to any of the Trusts, which is inferentially reinforced by the absence of any active engagement in the proceeding by unitholders or others. Further, had the Liquidators approached the court slightly earlier so as to enable them to deal with the assets through one of the alternative causes open, it is in my view at least highly likely that such a course would have been facilitated by the court.
I am satisfied that each of the Trustee Companies, through the Liquidators, acted honestly and reasonably.
For essentially the same reasons as referred to above I am also satisfied on the evidence that each of the Trustee Companies ought fairly to be excused for any breach of trust by not having given notice to date of an intention to retire in accordance with the Retirement Clause in each of the Trust Deeds, and for not seeking directions prior to the commencement of this application. As to the latter point, it is apparent that the Liquidators appropriately considered the matter whilst administrators and that they sought and acted upon further advice following their appointment as Liquidators. They were correct that, upon its proper construction, the Retirement Clause was not engaged upon their appointment as administrators. They acted relatively promptly, and such delay as there had been was contributed to by the conduct of others and the practical realities involved, including some timing challenges faced by counsel[42] and, I infer, some challenges associated with the COVID-19 pandemic. In any event, such delays were not ultimately significant. It was also apparent that the Liquidators considered an application to the court to be necessary and prudent and that they acted in a manner consistent with the views that they reached. There is in my view no doubt that the Liquidators were correct in their view that it was necessary and appropriate for an application to be made to the court given the circumstances.
[42]Which were responsibly volunteered and acknowledged.
I add that no potentially interested party has sought to be heard in relation to this issue or communicated with the court or the Liquidators regarding the same.
Having regard to all of the circumstances I am satisfied that the Trustee Companies, through the Liquidators, each acted honestly and reasonably and ought fairly to be excused for any breach of trust to date by not giving notice of an intention to retire in accordance with the Retirement Clause in each of the Trust Deeds, and for not seeking directions prior to the commencement of this proceeding.
I do not at this stage propose to make the order sought pursuant to s 67 of the Trustee Act excusing the Trustee Companies from liability in respect of any dealing with trust assets of each of the Trusts since the appointment of the Liquidators (or before), including for the purpose of the realisation of those assets.
Although a helpful summary of the dealings with the assets by the Liquidators was provided, there is insufficient information currently available on the evidence to enable the court to make a properly informed decision on the issues in relation to the assets in each of the Trusts, or adequately to assess whether the enlivening criterion of s 67 — that it appears that the Trustee Companies is or may be liable for a breach of trust — has been relevantly satisfied.
This conclusion is not intended to convey a criticism of the material put before the court, or to suggest that the evidence gave rise to any concern about the Trustee Companies (through the Liquidators) acting honestly or reasonably in this regard. But as things stand there is insufficient material to enable the issues properly to be considered, noting also that it may require the court to consider whether it is appropriate for a contradictor to be appointed should a material issue arise in the future.
For the avoidance of doubt, this is not intended to affect and does not affect the rights of the Trustee Companies, through the Liquidators, to make a further application pursuant to s 67 of the Trustee Act at a later point in time, supported by appropriate evidence, should an issue arise where it is considered desirable or necessary to do so.
Before leaving the topic of s 67 of the Trustee Act it is appropriate to make three brief further observations.
First, although the circumstances of this case were unusual or difficult as emphasised by counsel for the plaintiffs, that of itself does not provide a sound or valid basis for trustees — whether through liquidators or otherwise — choosing or determining not to comply with the terms of a trust deed. So much was appropriately recognised by the Liquidators and reflected in their actions in bringing the issue before the court. As is apparent, it was the particular combination of circumstances in question in this case that make the limited relief to be granted under s 67 of the Trustee Act appropriate.
Secondly, insofar as it was pressed, I do not accept the submission that the reasonableness of the course chosen was materially supported by the tension with the duties and obligations of a liquidator to get in and realise the assets of a company expeditiously or efficiently. Such tensions often arise when liquidators are appointed to corporate trustees but this does not, of itself, provide a sound basis for deciding to side-step or not to comply with the terms of a trust — which is not to suggest that this is how the Liquidators acted in this matter.
Thirdly, with the benefit of hindsight it appears that the preferable course may likely have been for the Liquidators to have earlier sought appointment as receivers of the assets of the Trusts, or to have sought orders from the court facilitating retirement and the conferral of appropriate powers pursuant to section 63 of the Trustee Act. That said, I appreciate that there may be additional matters not addressed in this proceeding that may have made such a course not suitable at the time, noting also that the Liquidators were faced with pressing circumstances, and that the qualified view just expressed is not intended to detract from the views and conclusions earlier expressed regarding the Liquidators’ approach and the appropriateness of making a limited order under s 67 of the Trustee Act.
Other orders – costs of the proceeding, publication of orders, and liberty to apply
I accept that it is appropriate to make a direction under s 90-15 of Schedule 2 that the Liquidators are justified proceeding on the basis that the costs of this application properly incurred are costs in the winding up of the Companies, although I shall address further with counsel for the plaintiffs the precise form of order and how remuneration, costs and expenses are proposed to be addressed given the number of the Companies and Trusts involved.
I also accept that it is appropriate to make an order pursuant to s 90-15 of Schedule 2 permitting the Liquidators to give general notice of the orders to be made by publishing a sealed copy on the Korda Mentha website, but provided that sufficient attention is drawn to their existence and that they are straightforward to access and read. I am fortified in this view by the terms of the statutory report which recorded that any orders would be published in this way.
As sought, an additional order will also be made allowing the plaintiffs liberty to apply on three business days’ notice to vary these orders, but the scope of the order will be extended so as to include any person demonstrating a sufficient interest. This will assist in addressing any limited remaining concern about the risk of the partially inadequate books and records of the Trustee Companies not accurately recording the details of the current unitholders and the Liquidators not having completely eliminated that risk.[43]
[43]This is not intended to imply that any order under s 67 of the Trustee Act is open to be varied. This issue did not arise and has not been considered, although it may be noted that there is an express power of rescission and variation in s 63(2) of the Trustee Act but that no equivalent power is found in s 67 of the Trustee Act.
Conclusion and Proposed Orders
Subject to addressing the precise form of orders with counsel, I propose to make orders to the following effect:
(1)Pursuant to s 90-15 of Schedule 2 of the Act the Liquidators of each of the Trustee Companies are justified in acting on the basis that each of the Trustee Companies operated in its capacity as trustee only and that the assets of each of the Trustee Companies are properly characterised as property held by each company in its capacity as trustee.
(2)Pursuant to s 90-15 of Schedule 2 of the Act, the Liquidators of each of the Trustee Companies are justified in proceeding on the basis that their possession, realisation and distribution of the property of each of the Trusts is governed by Parts 5.5 and 5.6 of the Corporations Act.
(3)Pursuant to s 90-15 of Schedule 2 of the Act, the Liquidators of each of the Trustee Companies are justified in proceeding on the basis that:
(a)the Liquidators of each of the Trustee Companies are entitled to be paid their remuneration, costs and expenses properly incurred in preserving, realising or getting in the trust property of each of the Trusts, or in carrying on the business of each of the Trusts, or in conducting the winding up of each of the Trustee Companies (Remuneration and Expenses), from the trust property of each of the corresponding Trusts;
(b)the Remuneration and Expenses of the Liquidators includes the remuneration, costs and expenses properly incurred of and incidental to this proceeding; and
(c)the Remuneration and Expenses of the Liquidators are to be paid in accordance with the priority specified in s 556(1) of the Act.
(4)Pursuant to s 67 of the Trustee Act, each of the Trustee Companies are excused from any personal liability for any breach of trust by failing to give notice to date of an intention to retire as trustee pursuant to clause 21 of each of the Trust Deeds.
(5)Pursuant to s 90-15 of Schedule 2 of the Act, the Liquidators may give notice of these orders by publishing a sealed copy on the website to be so published within three business days of the date of these orders.
(6)There is liberty to apply for the plaintiffs and any person who can demonstrate a sufficient interest to vary or modify these directions and orders on not less than three days’ notice.
Annexure A
Schedule of Trustee Companies and Relevant Trusts
| Plaintiff No | Trustee | Trust | Trust Instrument |
| 2 | Hellenic Hotel Williamstown Pty Ltd | Hellenic Hotel Unit Trust | Deed of trust dated 29 November 2013 |
| 3 | Elektra Restaurant & Bar Pty Ltd | Elektra Unit Trust | Deed of trust dated 10 March 2015 |
| 4 | Hellenic Republic Restaurant and Bar (Kew) Pty Ltd | Hellenic Republic Kew Unit Trust | Deed of trust dated 25 August 2009. |
| 5 | Hellenic Republic Restaurant and Bar (Brunswick) Pty Ltd | Hellenic Republic Restaurant and Bar (Brunswick) Unit Trust | Deed of trust dated 25 July 2008 |
| 6 | The Press Club Restaurant and Bar Pty Ltd | N/A | N/A |
| 7 | JG (Eastland) Pty Ltd | JG (Eastland) Unit Trust | Deed of trust dated 21 February 2011. Supplemental deed dated 3 July 2015 |
| 8 | JG (Fitzroy) Pty Ltd | JG (Fitzroy) Unit Trust | Deed of trust dated 14 February 2013 |
| 9 | JG (Emporium) Pty Ltd | Emporium Unit Trust | Deed of trust dated 22 July 2010. |
| 10 | JG (Ormond) Pty Ltd | JG (Ormond) Unit Trust | Deed of trust dated 17 June 2013 |
| 11 | JG (Richmond) Pty Ltd | JG (Richmond) Unit Trust | Deed of trust dated 7 May 2014 |
| Plaintiff No | Trustee | Trust | Trust Instrument |
| 12 | JG (St Kilda) Pty Ltd | JG (St Kilda) Unit Trust | Deed of trust dated 27 July 2017 |
| 13 | JG (Chadstone) Pty Ltd | JG (Chadstone) Unit Trust | Deed of trust dated 26 July 2017 |
| 14 | Restaurant Brands Pty Ltd | Restaurant Brands Unit Trust | Deed of trust dated 25 July 2008 Supplemental deed dated 12 September 2017 |
| 15 | Sycal Pty Ltd | Sycal Unit Trust | Deed of trust dated 2 July 2014 |
| 16 | Jimmy Grants Pty Ltd | Jimmy Grants Unit Trust | Deed of trust dated 31 January 2013 |
| 17 | Made Establishment Pty Ltd | The Restaurant Holdings Unit Trust | Deed of trust dated 25 July 2008 |
| 18 | JGOPS Pty Ltd | JGOPS Unit Trust | Deed of trust dated 31 January 2013 |
| 19 | JG (Robina) Pty Ltd | JG (Robina) Unit Trust | Deed of trust dated 30 September 2014 Supplemental deed dated 13 April 2016 |
| 20 | JG (Sydney) Pty Ltd | JG (Sydney) Unit Trust | Deed of trust dated 3 December 2014 Supplemental deed dated 7 August 2017 |
| Plaintiff No | Trustee | Trust | Trust Instrument |
| 21 | Pressing Events Pty Ltd | N/A | N/A |
| 22 | JGIP Pty Ltd | JGIP Unit Trust | Deed of trust dated 31 January 2013 |
| 23 | JG (Glen Waverley) Pty Ltd | JG (Glen Waverley) Unit Trust | Deed of trust dated 8 April 2014 |
Schedule of Parties
BETWEEN: S ECI 2020 02606
| CRAIG PETER SHEPARD AND LEANNE KYLIE CHESSER IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF HELLENIC HOTEL WILLIAMSTOWN PTY LTD (IN LIQUIDATION) (ACN 166 339 064) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE HELLENIC HOTEL UNIT TRUST | First Plaintiff |
| HELLENIC HOTEL WILLIAMSTOWN PTY LTD (IN LIQUIDATION) (ACN 166 339 064) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE HELLENIC HOTEL UNIT TRUST | Second Plaintiff |
| ELEKTRA RESTAURANT & BAR PTY LTD (IN LIQUIDATION) (ACN 604 656 206) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE ELEKTRA UNIT TRUST | Third Plaintiff |
| HELLENIC REPUBLIC RESTAURANT AND BAR (KEW) PTY LTD (IN LIQUIDATION) (ACN 139 076 136) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE HELLENIC REPUBLIC KEW UNIT TRUST | Fourth Plaintiff |
| HELLENIC REPUBLIC RESTAURANT AND BAR (BRUNSWICK) PTY LTD (IN LIQUIDATION) (ACN 132 294 636) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE HELLENIC REPUBLIC RESTAURANT AND BAR (BRUNSWICK) UNIT TRUST | Fifth Plaintiff |
| THE PRESS CLUB RESTAURANT AND BAR PTY LTD (IN LIQUIDATION) (ACN 116 746 439) | Sixth Plaintiff |
| JG (EASTLAND) PTY LTD (IN LIQUIDATION) (ACN 147 766 381) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JG (EASTLAND) UNIT TRUST | Seventh Plaintiff |
| JG (FITZROY) PTY LTD (IN LIQUIDATION) (ACN 162 364 150) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JG (FITZROY) UNIT TRUST | Eighth Plaintiff |
| JG (EMPORIUM) PTY LTD (IN LIQUIDATION) (ACN 165 041 618) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE EMPORIUM UNIT TRUST | Ninth Plaintiff |
| JG (ORMOND) PTY LTD (IN LIQUIDATION) (ACN 164 279 565) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JG (ORMOND) UNIT TRUST | Tenth Plaintiff |
| JG (RICHMOND) PTY LTD (IN LIQUIDATION) (ACN 169 418 615) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JG (RICHMOND) UNIT TRUST | Eleventh Plaintiff |
| JG (ST KILDA) PTY LTD (IN LIQUIDATION) (ACN 620 696 951) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JG (ST KILDA) UNIT TRUST | Twelfth Plaintiff |
| JG (CHADSTONE) PTY LTD (IN LIQUIDATION) (ACN 620 697 378) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JG (CHADSTONE) UNIT TRUST | Thirteenth Plaintiff |
| RESTAURANT BRANDS PTY LTD (IN LIQUIDATION) (ACN 128 686 779) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE RESTAURANT BRANDS UNIT TRUST | Fourteenth Plaintiff |
| SYCAL PTY LTD (IN LIQUIDATION) (ACN 600 486 735) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE SYCAL UNIT TRUST | Fifteenth Plaintiff |
| JIMMY GRANTS PTY LTD (IN LIQUIDATION) (ACN 162 143 679) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JIMMY GRANTS UNIT TRUST | Sixteenth Plaintiff |
| MADE ESTABLISHMENT PTY LTD (IN LIQUIDATION) (ACN 132 388 857) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE RESTAURANT HOLDINGS UNIT TRUST | Seventeenth Plaintiff |
| JGOPS PTY LTD (IN LIQUIDATION) (ACN 162 144 729) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JGOPS UNIT TRUST | Eighteenth Plaintiff |
| JG (ROBINA) PTY LTD (IN LIQUIDATION) (ACN 602 093 890) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JG (ROBINA) UNIT TRUST | Nineteenth Plaintiff |
| JG (SYDNEY) PTY LTD (IN LIQUIDATION) (ACN 603 178 892) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JG (SYDNEY) UNIT TRUST | Twentieth Plaintiff |
| PRESSING EVENTS PTY LTD (IN LIQUIDATION) (ACN 163 483 127) | Twenty-first Plaintiff |
| JGIP PTY LTD (IN LIQUIDATION) (ACN 162 144 710) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JGIP UNIT TRUST | Twenty-second Plaintiff |
| JG (GLEN WAVERLEY) PTY LTD (IN LIQUIDATION) (ACN 166 925 060) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JG (GLEN WAVERLEY) UNIT TRUST | Twenty-third Plaintiff |
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