Re Winex Property Pty Ltd (in liquidation) - [2025] VSC 167

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2025 01333

IN THE MATTER of WINEX PROPERTY PTY LTD (IN LIQUIDATION) (ACN 155 721 320)

ANDREW WILLIAM POULTER (IN HIS CAPACITY AS LIQUIDATOR OF WINEX PROPERTY PTY LTD (IN LIQUIDATION) (ACN 155 721 320)	First Plaintiff
WINEX PROPERTY PTY LTD (IN LIQUIDATION) (ACN 155 721 320)	Second Plaintiff

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JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2025
DATE OF JUDGMENT:	2 April 2025
DATE OF REASONS FOR JUDGMENT:	3 April 2025
CASE MAY BE CITED AS:	Re Winex Property Pty Ltd (in liquidation)
MEDIUM NEUTRAL CITATION:	[2025] VSC 167

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CORPORATIONS – Liquidation – Liquidator of company seeks appointment as receiver over assets held on trust by the company – Where company carried on business and otherwise operated solely in capacity as trustee of a trust – Ipso facto clause in trust deed such that appointment of liquidator renders company to be a bare trustee – Liquidator appointed as receiver over trust assets – Supreme Court Act 1986 (Vic), s 37.

CORPORATIONS – Liquidation – Liquidator of company seeks judicial advice as to company’s status as trustee and liquidator’s power over trust assets – Where company carried on business and otherwise operated solely in capacity as trustee of a trust – No ipso facto clause in trust deed such that appointment of liquidator does not remove company as trustee of the trust – Declarations made – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 54.02 - ss 90-15 and 90-20 of Schedule 2 Insolvency Practice Schedule (Corporations) to the Corporations Act 2001 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms A.V.M Carruthers of counsel	Lewis Holdway Lawyers

HER HONOUR:

Introduction

The first plaintiff, Andrew William Poulter (Liquidator) is the liquidator of the second plaintiff, Winex Property Pty Ltd (Company).
The Company was the trustee of three unit trusts:
(a)the 96 Williamsons Unit Trust (ABN 55 209 061 207) (Williamsons Unit Trust);
(b)the 1 Pleasant Unit Trust (ABN 49 517 267 654) (Pleasant Unit Trust); and
(c)the 399 Manningham Unit Trust (ABN 93 670 668 406) (Manningham Unit Trust),
(together, the Trusts).
By originating process filed 14 March 2025, the plaintiffs seek various forms of relief. In summary, the plaintiffs seek:
(a)Pursuant to s 37 of the Supreme Court Act 1986 (Vic) (the SC Act), orders appointing the Liquidator as receiver and manager of the assets and undertaking of the Williamsons Unit Trust, and ancillary orders thereto; and
(b)judicial advice and directions, pursuant to ss 90-15 and 90-20 of Schedule 2 Insolvency Practice Schedule (Corporations) (Schedule 2) to the Corporations Act 2001 (Cth) (the Act), that the Company remains trustee of the Pleasant Unit Trust and has the trustee’s powers under the trust deed for the Pleasant Unit Trust, and ancillary orders thereto.
No relief is sought in respect of the Manningham Unit…

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.

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Details

Case: [2025] VSC 167
Decision Date: 2 April 2025

CaseChat Overview and Summary

Re Winex Property Pty Ltd (in liquidation) involved the liquidator of Winex Property Pty Ltd seeking to appoint himself as receiver over assets held by the company on trust. The dispute arose under the Supreme Court Act 1986 (Vic), with the central issue being the liquidator's entitlement to take control of the trust assets following the appointment of a liquidator. The court was required to determine the company's status as a trustee after the liquidator's appointment and whether such appointment could render the company a bare trustee, thereby allowing the liquidator to assume control of the trust assets.

The court's reasoning centred on the presence or absence of an ipso facto clause in the trust deed. An ipso facto clause stipulates that the appointment of a liquidator or administrator automatically terminates the company's role as a trustee. In this instance, the trust deed contained such a clause, and as a result, the court found that the company's appointment of a liquidator did indeed render it a bare trustee. Consequently, the liquidator was entitled to be appointed as the receiver over the trust assets. This conclusion was reached in accordance with section 37 of the Supreme Court Act 1986 (Vic).

The court further considered a situation where there was no ipso facto clause in the trust deed. In such a case, the appointment of a liquidator would not automatically remove the company from its role as trustee. The court made appropriate declarations to this effect, pursuant to the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and sections 90-15 and 90-20 of Schedule 2 Insolvency Practice Schedule (Corporations) to the Corporations Act 2001 (Cth). The orders reflected the court's findings on the company's status as a trustee and the liquidator's power over the trust assets.

Orders