Saker, in the matter of Great Southern Managers Australia Ltd (Receivers and Managers Appointed) (in liquidation)

The case involves the liquidators of Great Southern Managers Australia Ltd (GSMA) seeking guidance from the court regarding the ownership of monies held in certain Trust Maintenance Funds (TMF). The liquidators argue that the funds belong to the outgoing responsible entity (RE), while the plaintiffs contend that the funds should be dealt with according to Chapter 5 of the Corporations Act 2001 (Cth). The court was tasked with determining whether the monies held in the TMFs are the property of the outgoing RE or the incoming RE, and whether the amendment inserting clause 14.3(c) was valid. The central issue was the interpretation and application of sections 601FS and 601FT of the Corporations Act 2001 (Cth).

The court considered whether the rights, obligations, and liabilities of the former RE are limited to those capable of ongoing operation after the change in RE. The court concluded that the funds were not held on trust and should be dealt with according to Chapter 5 of the Corporations Act 2001 (Cth). The court also found that the right conferred on GSMA was accrued prior to the change of RE and did not have any ongoing operation after the change in RE. The court rejected the argument that the amendment inserting clause 14.3(c) was invalid, holding that it was not a power to insert any new fees or a power of confiscation but rather a specification of rights in the constitution.

In conclusion, the court ordered that the liquidators should retain and apply the respective funds in accordance with Chapter 5 of the Corporations Act 2001 (Cth). The court reserved costs. This decision clarifies the ownership of monies held in TMFs and the interpretation of relevant sections of the Corporations Act 2001 (Cth) in the context of a change in RE.