Robsyn Pty Ltd (in liquidation) v O'Brien

SUPREME COURT OF QUEENSLAND

CITATION:

Robsyn Pty Ltd (in liquidation) v O’Brien [2012] QSC 285

PARTIES:

ROBSYN PTY LTD (in liquidation)
(applicant)
v
PATRICIA MAY O’BRIEN AS TRUSTEE FOR THE JT & PM O’BRIEN SUPERANNUATION FUND
(respondent)

FILE NO/S:

637 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

21 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 February and 9 February 2012
Written submissions

JUDGE:

Daubney J

ORDERS:

1. (a)   The respondent indemnify the applicant from the $60,000 fund paid into Court on 22 November 2011 (“the Monies”) in the sum of $1,999.68 for the debt payable in that sum to the Deputy Commissioner of Taxation;

    (b)   The balance of the Monies (and any accretions) be paid out of Court to the respondent.

2.    I will hear the parties as to costs

CATCHWORDS:

EQUITY – TRUSTS AND TRSUSTEES – POWERS DUTIES RIGHTS AND LIABILITIES OF TRUSTEES – INDEMNITY LIEN AND REIMBURSEMENT – RELEVANT PRICNIPLES – where the applicant seeks reimbursement for all liabilities incurred by the applicant in its capacity as trustee of the superannuation fund – whether the respondent ought indemnify the applicant for any or all of these costs

CORPORATIONS – WINDING UP – LIQUIDATORS – RENUMERATION – IN WINDING UP BY COURT – GENERALLY – where the applicant seeks reimbursement for all liabilities incurred by the applicant in its capacity as trustee of a superannuation fund – where liabilities incurred pre and post winding up –  where costs and expenses include legal costs and remuneration of the liquidator – where legal action commenced by the liquidator unsuccessful –whether the respondent ought indemnify the application for any or all of these costs

Trusts Act 1973 (Qld), s 72

Dayroll Pty Ltd (in liq) v Dayroll NSW Pty Ltd [2009] NSWSC 895
O’Brien v Robsyn Pty Ltd [2011] QSC 399

COUNSEL:

A G Martin for the applicant
M Martin for the respondent

SOLICITORS:

Taylor David Lawyers for the applicant
MacDonnells Law for the respondent

1. By the present application, as filed, the applicant sought the following relief:

“1. An order pursuant to section 72 of the Trusts Act (Qld) 1973, or alternatively pursuant to a covenant contained in a Deed dated 28 April 2008, that the Respondent indemnify the Applicant from the $60,000 fund paid into this honourable Court on 22 November 2011 (“the Monies”) for all liabilities incurred by the Applicant in its capacity as trustee of the JT & PM O’Brien Superannuation Fund (“the Fund”).

2.   An order pursuant to s101 of the Trusts Act (Qld.) 1973 that the Applicant be entitled to charge, and recover from, the Monies, an amount equal to the Applicant’s reasonable remuneration for having acted as trustee of the Fund for the period 23 November 1996 to 28 April 2008.

3.   An order that the Applicant be indemnified from the Monies for its costs in these proceedings.

4.   An order that the Respondent indemnify the Applicant in respect of the Applicant’s legal costs of these…