Re Stanjo Pty Ltd (in Liquidation)
[2025] WASC 196
•22 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE STANJO PTY LTD (IN LIQUIDATION); EX PARTE JENNIFER ELIZABETH LOW as liquidator of STANJO PTY LTD [2025] WASC 196
CORAM: HILL J
HEARD: 9 MAY 2025
DELIVERED : 9 MAY 2025
PUBLISHED : 22 MAY 2025
FILE NO/S: COR 69 of 2025
MATTER: IN THE MATTER OF STANJO PTY LTD (IN LIQUIDATION)
EX PARTE
JENNIFER ELIZABETH LOW as liquidator of STANJO PTY LTD
First Plaintiff
STANJO PTY LTD
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 420, s 477(2), 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:
Application granted
Category: B
Representation:
Counsel:
| First Plaintiff | : | W Macdonald |
| Second Plaintiff | : | W Macdonald |
Solicitors:
| First Plaintiff | : | Roe Legal Services |
| Second Plaintiff | : | Roe Legal Services |
Case(s) referred to in decision(s):
Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 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
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.)
On 24 April 2025, the first plaintiff was appointed as liquidator (Liquidator) of the second plaintiff (Company). Prior to the appointment of the Liquidator, the Company was the trustee of the Stanjo Trust (Trust).
On 6 May 2025, the plaintiffs filed an originating process in this court (which was amended on 7 May 2025 due to a typographical error in the Company's ACN) seeking orders that the Liquidator be appointed without security as receiver and manager of the assets of the Trust and that, in acting as receiver, she has:
(a)powers under s 420 of the Corporations Act 2001 (Cth) (Act), as if the reference to 'corporation' in that section was a reference to the Trust;
(b)the powers under s 477(2) of the Act that a liquidator has in respect of property of a company; and
(c)the power to sell and convert into cash any trust assets or property.
The originating process has come before me today, on an urgent basis. The plaintiffs filed two affidavits in support of their application, an affidavit of the first plaintiff, filed 6 May 2025, and an affidavit of Nikolas Patterson, filed 8 May 2025, confirming that the application has been served on the Australian Securities and Investments Commission.
I have also had the benefit of an outline of submissions that was filed by the plaintiffs.
Factual background
The factual background to the application is set out in the Liquidator's affidavit and can be summarised as follows.
The Company was incorporated on 20 January 2021 and operated as a logistics, warehousing, print finishing, and main and freight forwarding business. The directors and shareholders of the Company are Anna Kathleen Sykes and Stephanie Lynn Jones. Ms Jones is also the Company's secretary.[1]
[1] Affidavit of Jennifer Elizabeth Low filed 6 May 2025, 'JEL-2'.
On 24 April 2025, Ms Sykes and Ms Jones passed a members' resolution to voluntarily wind up the Company and to appoint the first plaintiff as liquidator pursuant to s 491 of the Act.[2]
[2] Affidavit of Jennifer Elizabeth Low filed 6 May 2025, 'JEL-1'.
Based on the inquiries undertaken by the Liquidator to date, she believes that the Company:[3]
(a)was the trustee of the Trust;
(b)did not operate any business or conduct any activities in any capacity other than as trustee of the Trust; and
(c)did not act as trustee of any other trust, and does not own any assets, either in its own right or as trustee of any other trust.
[3] Affidavit of Jennifer Elizabeth Low filed 6 May 2025 [9].
At this stage, the Liquidator believes the Company has no secured creditors, has priority creditors of approximately $46,500, and has unsecured creditors of approximately $168,000. At this stage, no proofs of debt have been lodged by any creditor, except the Australian Taxation Office.
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 5 February 2021. Pursuant to cl 22.7(f) of the Trust Deed, on the appointment of a liquidator, the Company was required to retire as trustee of the Trust and was disqualified from acting as trustee.[4]
[4] Affidavit of Jennifer Elizabeth Low filed 6 May 2025, 'JEL-3'.
Service of application
I am satisfied on the evidence before me that ASIC has been served with copies of the originating process and the Liquidator's affidavit, as required by r 2.8 of the Supreme Court (Corporations) Rules 2004 (WA).
No one has given notice to the plaintiff's solicitors or filed any notice at the court that they wish to be heard on the application.
Legal principles for appointment of receiver
The legal principles that govern this application are well known and can be summarised as follows.
Where a corporate trustee enters external administration, the company's right of indemnity and accompanying equitable lien over the assets of the trust survives the appointment. Where a company has been removed as trustee of the trust by reason of the terms of the trust deed, the company retains the right to hold trust assets as their trustee. However, the liquidator does not have power to sell those assets to satisfy that indemnity without an order from the court.[5]
[5] 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].
In that situation, the liquidator has, in essence, two options. First, to apply for an order that confers power on the liquidator to deal with the assets of the trust or, alternatively, to apply to be appointed as receiver and manager of the trust.
In this case, the Liquidator seeks to be appointed as receiver and manager of the Trust and seeks orders under s 90‑15 of the Insolvency Practice Schedule (Corporations) (sch 2 of the Act) (IPS) to facilitate their dealing with the assets of the Company to enable the winding up of the Company and the Trust to proceed.
Section 90-15(1) of the IPS provides that the court may make 'such orders as it thinks fit in relation to the external administration of a company'. It is accepted that this power is extremely broad power and is at least as extensive as the powers formerly available under s 479(3) and s 511 of the Act.
The court has power to appoint a receiver under O 51 r 1 of the Rules of the Supreme Court 1971 (WA), as well as s 25(9) of the Supreme Court Act 1935 (WA).
In the absence of any relevant conflict, it is commonly the case that the court will appoint the liquidator of the corporate trustee as a receiver without security.[6] This is because appointing the liquidator of a corporate trustee as receiver of the 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 liquidation. This aids in the vindication of the trustee company's right of indemnity out of the trust's assets.[7]
[6] In the matter of Hercules Car Parking Systems (Victoria) Pty Ltd [2018] NSWSC 409.
[7] In the matter of Mecfab Holdings Pty Ltd [2015] NSWSC 46 [9].
Once the sale of the trust's assets has occurred, the proceeds may be appropriated by way of exoneration as part of the conduct of the liquidation in accordance with the statutory priorities set out pt 5.6, div 6 of the Act.[8] This includes the costs of the liquidation.
[8] Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 [55] ‑ [58], [95] ‑ [97], [171].
Should the first plaintiff be appointed as receiver?
On the evidence before me, I accept that by reason of cl 22.7(f) of the Trust Deed, on the appointment of Ms Low as liquidator, the Company was removed as trustee of the Trust. As a consequence, the Company is now a bare trustee of the Trust's assets and does not have the power to sell or otherwise deal with the assets of the Trust.
I am satisfied on the evidence before me that the Company only acted as trustee of the Trust and in no other capacity, and that all Trust assets held by the Company were held in its capacity as trustee of the Trust.
The orders sought by the plaintiffs in orders 1 and 2 of the originating process are consistent with these legal principles.
Given the evidence before the court, I accept that it is expedient for the Liquidator to have the power to sell the property and/or assets of the Trust. This is particularly because, on the evidence before the court, the plaintiffs have received expressions of interest for the purchase of the Company's business.[9]
[9] Plaintiffs' submissions filed 7 May 2025 [10].
I also accept it is appropriate to appoint the Liquidator as receiver and manager of the Trust without security. 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 its creditors. Other advantages with the proposal include that the Liquidator is subject to the regulatory regime applicable to insolvency practitioners, has professional indemnity insurance, and is subject to the continued supervision of the court.
The form of the orders sought by the plaintiffs allow for an application to be made to this court to vary or discharge these orders. These orders protect the creditors of the Company from any possible prejudice that might otherwise arise from this application.
What is the appropriate costs order?
Finally, the plaintiffs seek a series of orders in relation to the costs of the application.
I accept that the costs incurred by the Liquidator as receiver are an incident of the liquidation. On this basis, I accept that the costs incurred by the Liquidator in her capacity as receiver should be costs in the winding up of the Company and paid out of Trust assets, and that orders should be made to enable the remuneration to be approved by one of the alternatives that is identified in s 60‑10 of the IPS.
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
22 MAY 2025
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