Topp, in the matter of Aidzan Pty Limited (In Liquidation)
[2019] FCA 313
•6 March 2019
FEDERAL COURT OF AUSTRALIA
Topp, in the matter of Aidzan Pty Limited (In Liquidation) [2019] FCA 313
File number: NSD 306 of 2019 Judge: YATES J Date of judgment: 6 March 2019 Catchwords: CORPORATIONS – external administration – winding up – where the company in liquidation is the trustee of a unit trust – where there is uncertainty as to liquidators' power to dispose of trust property – appointment of liquidators as receivers and managers of the trust property Legislation: Corporations Act 2011 (Cth), ss 477(1), 477(2), 477(3)
Federal Court Rules 2011 (Cth), rr 14.21, 14.22, 14.24, 14.25
Date of hearing: 6 March 2019 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 12 Counsel for the First and Second Plaintiffs: R Marshall SC and A Kaufman Solicitor for the First and Second Plaintiffs Ashurst ORDERS
NSD 306 of 2019 IN THE MATTER OF AIDZAN PTY LTD (IN LIQUIDATION) ACN 003 889 558
BETWEEN: ALAN GODFREY TOPP IN HIS CAPACITY AS OFFICIAL LIQUIDATOR OF AIDZAN PTY LIMITED (IN LIQUIDATION) ACN 003 89 558
First Plaintiff
BRUCE GLEESON IN HIS CAPACITY AS OFFICIAL LIQUIDATOR OF AIDZAN PTY LIMITED (IN LIQUIDATION) ACN 003 889 558
Second Plaintiff
AIDZAN PTY LIMITED (IN LIQUIDATION)
Third Plaintiff
JUDGE:
YATES J
DATE OF ORDER:
6 MARCH 2019
THE COURT ORDERS THAT:
1.Nazdia Pty Limited ACN 631 617 331 be joined as the defendant.
2.The first and second plaintiffs be appointed without security as joint and several receivers and managers (the Receivers) of the assets of the P.A.L. Property Trust ABN 12 901 829 908 (P.A.L Property Trust) until further order.
3.The need for the Receivers to file a guarantee under rr 14.21 and 14.22 of the Federal Court Rules 2011 (Cth) (the Rules) be dispensed with.
4.The Receivers have the powers in the Schedule of Powers in Annexure A to these orders, together with the powers that a liquidator has in respect of property of a company (in its role as legal owner and trustee) pursuant to ss 477(1), 477(2) and 477(3) of the Corporations Act 2001 (Cth) (the Act).
5.The amount of the Receivers’ remuneration be determined by the Registrar.
6.The Receivers be at liberty to apply to the Registrar from time to time to have their remuneration determined.
7.Pursuant to r 14.24 of the Rules, the Receivers be entitled to draw down and be paid from property realised in the receivership for their remuneration and their reasonable costs and expenses calculated, unless the Registrar considers otherwise, in accordance with Annexure AC of Exhibit AT-1 to the affidavit of Alan Godfrey Topp sworn 27 February 2019 and the time actually spent.
8.The Registrar be directed to determine the amount of the first and second plaintiffs’ remuneration as liquidators of the third plaintiff for the period from 4 February 2019 to 26 February 2019, as claimed at paragraph 42 to the affidavit of Alan Godfrey Topp sworn 27 February 2019 and Annexure AA of Exhibit AT-1 to that affidavit.
9.Pursuant to r 14.25 of the Rules, the first and second plaintiffs file an interim report with the Court on the first to occur of:
(a)30 June 2019; or
(b)within 14 days of the date a contract for the sale of the land known as 146 Sunnyholt Road, Blacktown 2148 is executed and exchanged.
10.Liberty be granted to the parties to apply on 3 working days’ notice.
11.The proceeding be listed for case management on a date to be advised before the Docket Judge to be appointed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)YATES J:
The first and second plaintiffs apply to be appointed as receivers and managers of the assets of the P.A.L Property Trust ABN 12 901 829 908 (the property trust). The first and second plaintiffs were appointed as joint and several liquidators of the third plaintiff on 4 February 2019 by order of the Supreme Court of New South Wales on the application of Sydney Water Corporation, based on a debt of $30,384.87.
The sole director and secretary of the third plaintiff is Peter Alan Laird. The third plaintiff has one issued share. It is held beneficially by Mr Laird. The first and second plaintiffs have been unable to obtain access to the books and records of the third plaintiff due to circumstances which I need not recount in these reasons. However, on the available evidence, it appears that the third plaintiff is the trustee of the property trust. It also appears that the property trust is a unit trust, the units of which are held by the trustee of The Aidzan Superannuation Fund ABN 63 486 707 044 (the superannuation fund). Mr Laird is the sole member of the superannuation fund.
At the time of the first and second plaintiffs’ appointment as liquidators, the third plaintiff was the trustee of the superannuation fund. However, on 18 February 2019, the third plaintiff was replaced as trustee by Nazdia Pty Ltd ACN 631 617 331 (Nazdia). It is proposed that Nazdia be joined as a defendant in the proceeding.
On the presently available information, the assets of the property trust comprise the sum of $9,609.75, held in a bank account with Australia and New Zealand Banking Group Limited, and property at 146 Sunnyholt Road, Blacktown (referred to in the evidence as the Sunnyholt property). Colliers International has carried out an appraisal of the Sunnyholt property and provided the opinion that it has a land value of between $8.25 million and $9.25 million plus GST. The Sunnyholt property is subject to claims for land tax, rates and charges in the total amount of approximately $95,500. The Sunnyholt property is also subject to a mortgage to Australia and New Zealand Banking Group Limited (ANZ). There is, however, no present indebtedness to ANZ, and it is expected that the mortgage will be discharged soon.
Since the first and second plaintiffs’ appointment as liquidators, they have been notified by Mr Laird that Baycorp Collections PDL Australia Pty Ltd has a claim against the third plaintiff for $1,185.63. Another company associated with Mr Laird, K. & A. Laird (N.S.W.) Pty Ltd, is currently subject to a members’ voluntary winding up. The first and second plaintiffs are currently awaiting information from the liquidator of that company, and two other apparently related companies, Mr Hayes, as to whether any of those companies is a debtor or creditor of the third plaintiff.
There has also been significant delay by the third plaintiff in lodging tax returns on behalf of the property trust and also the superannuation fund during the time it was trustee of that fund. The first and second plaintiffs are uncertain as to what claims, if any, may be made against the third plaintiff or the property trust on account of taxation liabilities.
The present application arises because of doubts about whether a liquidator’s power of sale under s 477(2) of the Corporations Act 2001 (Cth) extends to property of a trust of which the company in liquidation is the trustee, but, because of the liquidation, has been disqualified from so acting.
In the present case, the first and second plaintiffs do not know whether the third plaintiff is so disqualified. However, the point remains that there is a doubt whether they can exercise their powers as liquidators to deal with the trust property. It has been the usual course in such cases to appoint the liquidators as receivers and managers of the trust property so that there is no gap in the powers they can properly exercise.
The present case is one where it is entirely appropriate that the first and second plaintiffs also be appointed as receivers and managers of the assets of the property trust to enable them to deal particularly with the valuable asset represented by the Sunnyholt property.
It is the first and second plaintiffs’ present intention to sell that property and, after payment of remuneration and reasonable costs and expenses, to place the balance of the funds for the benefit of the superannuation fund, of which, as I have said, Mr Laird is the sole member.
The solicitors for the first and second plaintiffs have been in contact with Mr Laird and his solicitors. Mr Laird has indicated in writing that he is happy for the first and second plaintiffs to proceed with the sale of the Sunnyholt property.
Mr Laird has also been given notice of today’s application and, through his solicitors, has signified his consent to the making of the orders proposed by the first and second plaintiffs in the originating process filed on 27 February 2019 (both interlocutory and final). The orders I propose to make today reflect the substance of the orders sought as interlocutory relief in the originating process.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 7 March 2019
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