Westpoint Management Ltd (in Liq) (Receivers and Managers Appointed) (in Its Capacity as trustee for the Warwick Cinema Syndicate Trust) v Sunjet Pty Ltd (in Its Capacity as trustee for the Sunjet Unit Trust)

The dispute arose between Westpoint Management Ltd (in Liquidation) (Receivers and Managers Appointed) (in its capacity as trustee for the Warwick Cinema Syndicate Trust) and Sunjet Pty Ltd (in its capacity as trustee for the Sunjet Unit Trust). The plaintiff sought directions under section 92 of the Trustees Act 1962 for declarations that the terms of both a mortgage and a charge do not secure moneys owed by the plaintiff, or alternatively, directions for the rectification of the terms of the mortgage and charge to ensure neither secures moneys owed by the plaintiff. The case was heard in the Supreme Court of New South Wales.

The court was required to determine the scope of the power conferred upon it by section 92 of the Trustees Act 1962. The plaintiff argued that since it had been wound up and provisional liquidators had been appointed as joint and several liquidators of the company, the court had jurisdiction to grant the relief sought. The defendants contended that the court lacked the necessary jurisdiction to order rectification of the mortgage and charge terms. Additionally, the plaintiff sought a direction for reasonable legal costs and disbursements incurred in relation to the summons for directions and the substantive proceedings, including any liability for the defendants' costs.

The court found that section 92 of the Trustees Act 1962 does indeed confer upon the court the power to grant the relief sought by the plaintiff. The court held that the appointment of provisional liquidators as joint and several liquidators of the plaintiff company did not divest the court of jurisdiction to grant the relief sought. The court also found that the relief sought was appropriate and directed the rectification of the terms of the mortgage and charge to ensure they do not secure moneys owed by the plaintiff. Finally, the court directed that the plaintiff be awarded reasonable legal costs and disbursements incurred in relation to the summons for directions and the substantive proceedings, including any liability for the defendants' costs.