UHY Haines Norton Chartered Accountants v Coroneo & Co Property Trust
[2013] QCAT 114
| CITATION: | UHY Haines Norton Chartered Accountants v Coroneo & Co Property Trust [2013] QCAT 114 |
| PARTIES: | UHY Haines Norton Chartered Accountants (Applicant) |
| V | |
| Coroneo & Co Property Trust (Respondent) |
| APPLICATION NUMBER: | MCDO2578-12 |
| MATTER TYPE: | Other minor civil dispute matter |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | John Bertelsen, Adjudicator |
| DELIVERED ON: | 28 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for interim orders is dismissed. 2. The initiating application is dismissed for lack of jurisdiction. |
| CATCHWORDS: | MINOR CIVIL DISPUTE - Trust – trustee – appointment of trustee – effect of liquidation – s 471B of the Corporations Act – institute or continue a proceeding Corporations Act 2001(Cth), s 471B |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
On 10 January 2013 the Tribunal ordered that the applicant must file material with respect to “why the application should not be struck out or amended to proceed against the trustee (for which leave would be required)”. The respondent was also required to make submissions with a determination of the papers after 15 February 2013. In the meantime, on 22 January 2013, the applicant filed an application for miscellaneous matters applying for a stay of proceedings until such time as a new trustee was identified. Such application further requested that Mr Coroneo who had been the principal of the relevant trust produce this information. In the context of the initiating application as it stood at the time this application is effectively an application for interim orders pursuant to s 58 of the QCAT Act.
Background and evidence
On 3 October 2012, UHY Haines Norton Chartered Accountants filed an application seeking $4,279.00 for invoiced accountancy services carried out for Coroneo & Co Property Trust. The respondent was nominated as Coroneo & Co Property Trust.
Coroneo & Co Pty Ltd (the company) had been the sole trustee of the Trust for a number of years. The company was placed in liquidation in June 2012. John Feddema of William Buck was appointed liquidator of the company. Immediately after service of the initiating application on his office William Buck wrote to the applicant referring the applicant to s 471B of the Corporations Act 2001(Cth) stating that the applicant would need leave of the Court to proceed against a company in liquidation.
The parties must come to the Tribunal as parties that are capable of suing and being sued.
The respondent as recited in the initiating application is not such a party. It is a trust in respect of which a trustee is required to be nominated.
The trustee Coroneo & Co Pty Ltd was placed in liquidation in June 2012. The liquidator is the person to be sued to recover, as a creditor, against the trust assets. It is only the liquidator that has recourse to the trust assets for the purpose of satisfying creditors dealing with the trustee in its capacity as such.
Particularly in the absence of a new trustee being appointed (which appears unlikely given the placing of the company in liquidation), the liquidator is the person with authority to apply trust assets for the benefit of creditors.
To initiate or continue an action against the company leave is required.[1]
[1] Corporations Act 2001 (Cth) s 471B.
At this point it is not competent for the Tribunal to make the company the respondent. The liquidator is the person who, only with leave, can be made the respondent; nor is it within the Tribunal’s power to appoint a new trustee in circumstances where the trustee’s position has, for the purpose of winding up and recourse to trust assets been vacated in favour of the liquidator.
This claim cannot be pursued either in its present form or by amendment. If the applicant wishes to take its claim further it should either seek leave to institute or proceed with proceedings (in the Supreme Court) or deal with the liquidator as a creditor.
Orders
1. The application for interim orders is dismissed.
2. The initiating application is dismissed for lack of jurisdiction.
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