Re Mackie Group Pty Ltd (in liq)

The case involves the liquidators of Mackie Group Pty Ltd, who are seeking directions regarding the winding up of the company and the priority of payment to unitholders under the Jupelina Unit Trust. The application is being heard in the Supreme Court of Victoria. The liquidators are seeking revised orders that would apply regardless of whether section 556 of the Corporations Act 2001 (Cth) applies or not, in light of conflicting authority on the issue. The liquidators have also sought a declaration regarding payments made under section 556 and the appropriate priority between unsecured creditors and unitholders.

The primary legal issue before the court was whether the liquidators could access trust assets for remuneration, costs, and expenses under trust principles, or whether the salvage principles applied. The court also had to determine whether a declaration should be made under section 1318(2) of the Corporations Act or section 67 of the Trustee Act 1958 (Vic) regarding payments made under section 556. Furthermore, the court had to decide the appropriate priority between unsecured creditors and unitholders and whether the amount owed by a unitholder should be deducted pursuant to Cherry v Boultbee. The court found that the liquidators could access trust assets for remuneration, costs, and expenses under trust principles. The court also held that it was appropriate to make a declaration under section 1318(2) of the Corporations Act regarding payments made under section 556. The court found that the appropriate priority between unsecured creditors and unitholders was that unsecured creditors had priority, and the amount owed by a unitholder should be deducted pursuant to Cherry v Boultbee.

The court made the revised orders sought by the liquidators, which provide for the payment of costs and expenses from the trust assets, and the payment of the balance of the trust assets to the unitholders. The court also made a declaration under section 1318(2) of the Corporations Act regarding payments made under section 556. Finally, the court held that the amount owed by a unitholder should be deducted pursuant to Cherry v Boultbee.