Whitby Land Company Pty Ltd (in Liquidation) (Receivers and Managers Appointed) v 89 Burswood Road Pty Ltd (ACN 130 015 619)
[2022] WASC 387
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WHITBY LAND COMPANY PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) -v- 89 BURSWOOD ROAD PTY LTD (ACN 130 015 619) [2022] WASC 387
CORAM: MASTER SANDERSON
HEARD: 14 NOVEMBER 2022
DELIVERED : 15 NOVEMBER 2022
PUBLISHED : 15 NOVEMBER 2022
FILE NO/S: COR 148 of 2022
BETWEEN: WHITBY LAND COMPANY PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)
First Plaintiff
ROBERT MICHAEL KIRMAN AS JOINT AND SEVERAL LIQUIDATOR OF WHITBY LAND COMPANY PTY LTD (IN LIQUIDATION)
Second Plaintiff
WILLIAM JAMES HARRIS AS JOINT AND SEVERAL LIQUIDATOR OF WHITBY LAND COMPANY PTY LTD (IN LIQUIDATION)
Third Plaintiff
AND
89 BURSWOOD ROAD PTY LTD (ACN 130 015 619) as trustee for WHITBY TRUST
Defendant
Catchwords:
Corporations law - Application to appoint receivers over trust property - Turns on own facts
Legislation:
Supreme Court Act 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | JE Scovell |
| Second Plaintiff | : | JE Scovell |
| Third Plaintiff | : | JE Scovell |
| Defendant | : | AP Rumsley & S Penglis SC |
Solicitors:
| First Plaintiff | : | Allens |
| Second Plaintiff | : | Allens |
| Third Plaintiff | : | Allens |
| Defendant | : | Alan Rumsley |
Case(s) referred to in decision(s):
Jones v Matrix Partners Pty Ltd; Re Killarnee Civil and Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310
MASTER SANDERSON:
By originating process filed 4 August 2022 the plaintiffs sought the following orders:
1 Pursuant to section 25(9) of the Supreme Court Act, the second and third plaintiffs be appointed as receivers and managers without security over all of the assets of the Whitby Trust (the Trust), save for the real properties:
(a) the land contained in certificate of title Volume 2797, Folio 630 on Deposited Plan 67676, known as Lot 9007;
(b) the land contained in certificate of title Volume 2807, Folio 238 on Deposited Plan 71324 known as Lot 9010;
(c) the land contained in certificate of title Volume 2847, Folio 966 on Deposited Plan 77035 known as Lot 9014; and
(d) the land contained in certificate of title Volume 2914, Folio 50 on Deposited Plan 409276 known as Lot 9020.
2 The second and third plaintiffs have, in respect of the assets the subject of the appointment pursuant to paragraph [1] above (Receivership Assets), all the powers that a receiver has under section 420 of the Corporations Act (other than section 420(2)(s), (t), and (u)) as if the references in that section to 'the corporation' were references to the Trust including, without limitation, the power to do all things necessary and convenient to:
(a) call upon and recover any moneys lent or advanced by the Trust to a beneficiary of the Trust;
(b) pay the creditors of the Trust from the proceeds of the assets, pursuant to the priorities prescribed under the provisions of the Corporations Act;
(c) compromise any claims on behalf of the Trust or against any of the Trust property on any terms the Second and Third Plaintiffs see fit;
(d) bring any claim against any party on behalf of the Trust; and
(e) execute any documents relating to the Trust.
3 The costs, expenses and remuneration incurred by the second and third plaintiffs as liquidators of the first plaintiff and as the receivers and managers of the Receivership Assets, including the costs of this application, be paid in priority from the Receivership Assets (including any proceeds from the recovery of any moneys owed to the Trust).
4 Upon distribution of the Receivership Assets and finalisation of the liquidation of the first plaintiff, the second and third plaintiffs are deemed to have automatically resigned as receivers over the Receivership Assets.
5 There be liberty to apply to any person who can demonstrate sufficient interest to modify or discharge paragraphs 1 to 4 on not less than 48 hours' written notice to the plaintiffs.
6 Any other orders as the Court deems fit.
The application was supported by an affidavit of William James Harris sworn 4 August 2022 and an affidavit of Lauren Christie Burton sworn 13 September 2022. In opposition to the application, the defendant relied on an affidavit of Tina Michelle Bazzo sworn 10 November 2022. The plaintiffs filed written submissions on 21 September 2022 and the defendant filed written submissions on 7 November 2022. It would seem subsequent to filing these written submissions, the defendant's solicitor consulted Senior Counsel. That resulted in a supplementary outline of submissions dated 11 November 2022. The filing of these submissions considerably narrowed the scope of the difference between the parties. In fact, at the hearing of the matter, Senior Counsel for the defendant effectively abandoned the defendant's original submissions. The plaintiffs quite properly filed submissions in reply which dealt with the defendant's supplementary submissions.
The relevant facts were not in dispute nor was there any dispute as to the relevant legal principles. Nonetheless, it is necessary to canvass both the facts and the legal principles to put the application in context. What follows is a direct quote from the original submissions filed on behalf of the plaintiffs. I have taken the slightly unusual step of quoting these submissions in full because, with respect, they set out with admirable clarity the relevant facts and the law. As I have said, none of these matters were in dispute between the parties:
3. The Company was incorporated on 11 July 2005.
4. Pursuant to a document titled 'Discretionary trust deed' dated 27 July 2005, the Company was appointed as the trustee of a trust known as the Whitby Trust.
5. Clause 12.1 of the Trust Deed provides:
The Trustee shall be entitled to be indemnified out of the Trust Fund against liabilities incurred by the Trustee:
(1) in the execution or attempted execution of, or as a consequence of the failure to exercise, any of the trusts, authorities, powers and discretions of this deed; or
(2) by virtue of being the Trustee of this Trust.
6. The Company operated a business developing, subdividing and selling property located in Piara Waters, south east of Perth.
7. Based on the Liquidators' investigations to date, the Liquidator's view is that the Company operated the business exclusively in its capacity as trustee of the Whitby Trust, and at all times held, and has continued to hold, the relevant properties on trust for the Whitby Trust.
8. On or about 22 August 2017, the Company was replaced as trustee of the Whitby Trust by 293 Nicholson Road Pty Ltd.5 The current trustee of the Whitby Trust is 89 Burswood Road Pty Ltd (89 Burswood).
9. On 27 September 2017, the Company was wound up in insolvency and the Liquidators were appointed as liquidators of the Company.
Liabilities of the Company
10. The Liquidators concluded that, based on the information they had access to, the Company's creditor positions as at the date of the Harris Affidavit was as follows:
WLC - Liability Amount ($)
Secured Creditors* 40,276,022
Australian Taxation Office (ATO) 44,128,403
ATO (Petitioning creditor costs) 5,222
Related party creditors 11,123,670
Unsecured creditors (excludes
related parties, the ATO and employee creditors) 67,606
Total 95,600,923
*Secured creditor position is not current and will be reduced by the current asset sales applied to Optima and Silver Link's facilities
Assets of the Company
11. On the date of the Liquidators' appointment, the Company held four properties (the Properties) in its capacity as trustee of the Whitby Trust, being:
(a) the land contained in certificate of title Volume 2797, Folio 630 on Deposited Plan 67676, known as Lot 9007 (Lot 9007);
(b) the land contained in certificate of title Volume 2807, Folio 238 on Deposited Plan 71324 known as Lot 9010 (Lot 9010);
(c) the land contained in certificate of title Volume 2847, Folio 966 on Deposited Plan 77035 known as Lot 9014 (Lot 9014); and
(d) the land contained in certificate of title Volume 2914, Folio 50 on Deposited Plan 409276 known as Lot 9020 (Lot 9020).
12. However, Lots 9010 and 9020 (Optima Properties) were subject to a first-ranking registered mortgage (the Registered Mortgage) to Optima Funding Pty Ltd (Optima), which was provided in connection with a facility agreement dated 22 September 2015 (the Optima Facility Agreement), under which Optima was the lender, GHT(WA) Pty Ltd (GHT(WA)) (in its own right and as trustee of the Gucce Holdings Trust) and Gucce Holdings Pty Ltd were the borrowers, and the Company was one of six guarantors.
13. Each of the Properties was also subject to an unregistered mortgage (the Unregistered Mortgage) to Silver Link Pty Ltd (Silver Link) provided in connection with a facility agreement dated 15 June 2017 (the 2017 Silver Link Facility Agreement), under which Silver Link was the lender, Fastbet Investments Pty Ltd was the borrower and the Company was one of six guarantors.
14. Following the Liquidators' appointment:
(a) on or about 12 June 2018, Optima took possession of the Optima Properties and appointed Mr Kim Wallman of HLB Mann Judd as agent for the mortgagee in possession of the Optima Properties pursuant to the Registered Mortgage;
(b) on or about 27 March 2019, Optima appointed Mr Wallman as receiver of the Optima Properties pursuant to the Registered Mortgage. Mr Wallman subsequently commenced subdividing and selling subdivided lots on these properties, remitting the sale proceeds to Optima;
(c) to date, the Liquidators understand that the total amount remitted to Optima as a result of these sales has been approximately $8.6 million;
(d) on 25 June 2020, Silver Link appointed Mr Wallman as receiver of Lots 9007 and 9014 pursuant to the Unregistered Mortgage; and
(e) on 27 July 2020, Silver Link appointed Mr Wallman as receiver of certain subdivided lots on the Optima Properties pursuant to the Unregistered Mortgage.
Potential claims available to the Company
15. The Liquidators have identified a potential claim for indemnity against GHT(WA). The claim relates to monies paid from the sale of the Optima Properties (as well as amounts paid from the sale of properties previously held by the Company in its capacity as trustee of the Whitby Trust) towards amounts owing in connection with the Optima Facility Agreement (GHT(WA) Indemnity Claim).
16. The Liquidators have also identified potential claims for indemnity and/or contribution against various parties in relation to monies paid from the sale of the Properties towards amounts owing under the 2017 Silver Link Facility Agreement and an earlier facility agreement dated 14 July 2014 under which Silver Link was the lender and the Company was a borrower (Silver Link Claims).
17. In circumstances where the GHT(WA) Indemnity Claim and the Silver Link Claims relate to moneys paid from the sale of the Properties, which were at all times held by the Company in its capacity as trustee of the Whitby Trust, it is submitted that the GHT(WA) Indemnity Claim and the Silver Link Claims should be treated as assets of the Whitby Trust.
18. While the Liquidators are not presently aware of any other assets held by the Whitby Trust, the Liquidators would be in a position to identify whether there are any further assets following their appointment as receivers and managers.
Demand to 89 Burswood and Liability
Correspondence with 89 Burswood
19. On 19 July 2022, Allens wrote to the current trustee of the Whitby Trust, 89 Burswood:
(a) demanding payment on behalf of the Company in the amount of $44,128,402.75 (Debt) as shown in the Proof of Debt dated 2 June 2022 (Proof of Debt), on account of the Company's right of indemnity for debts incurred in the Company's capacity as trustee of the Whitby Trust; and
(b) stating that if the Debt was not paid in accordance with the demand by 5pm on 2 August 2022, Allens were instructed to make an application to the Court for the Liquidators to be appointed as receivers of the Whitby Trust's assets for the purposes of recovering the Debt owing.
20.On 2 August 2022, Allens received a letter from Alan Rumsley dated 27 July 2022, acting for 89 Burswood.16 By that letter, 89 Burswood disputes, among other things, the liabilities of the Company set out in the Proof of Debt and the Liquidators' entitlement to appoint receivers over the assets of the Whitby Trust.
21. On 19 August 2022, Allens sent a letter to Mr Rumsley in response to the letter dated 27 July 2022
Liabilities to the ATO
22. The plaintiffs' evidence shows that the amount owing to the Australian Taxation Office as at September 2022 per the updated Statements of Account for the Company is as follows:
Consideration Amount $
INCOME TAX FOR TRUST BENEFICIARY
Income tax for trust beneficiary as the Trustee
for the Whitby Trust 5.491,482.07
INCOME TAX
Income tax as trustee for the Whitby Trust 25,266,937.64
RBA DEFICIT DEBTS
Running Balance Account deficit in respect
of BAS amounts as at 27 September 2017 astrustee for the Whitby Trust 11,505,927.40
GRANT TOTAL 42,264,347.11
Legal principles
Relevant legislative provisions
23. Section 25(9) of the Supreme Court Act provides:
A mandamus or an injunction may be granted, or a receiver appointed, by an interlocutory order of the Court or a judge in all cases in which it shall appear to the Court or a judge to be just or convenient that such order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the Court or judge shall think just; and if an injunction is asked, either before or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the Court or a judge shall think fit, whether the person against whom such injunction is sought is, or is not, in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title; and whether the estates claimed by both or by either of the parties are legal or equitable.
24. Section 90-20 of the IPS provides that an officer of the company may apply for orders under section 90-15.
25. Section 90-15(1) of the IPS provides that the Court may make such orders as it thinks fit in relation to the external administration of a company. Section 90-15(2) provides that, without limiting subsection (1), those orders may include:
(a) an order in relation to the costs of an action (including court action) taken by the external administrator of the company; and/or
(b) an order in relation to remuneration.
Case authorities
26. The power conferred by section 25(9) of the Supreme Court Act to appoint a receiver is a wide, general power and the classes of cases in which the court may appoint a receiver are not closed. However, the power must be exercised judicially and in accordance with established principles: Cardaci v Filippo Primo Cardaci (as executor of Estate of Marco Antonio Cardaci) [2021] WASC 331 at [687], citing University of Western Australia v Gray (No 6) [2006] FCA 1825.
27. There have been a number of applications before the Federal Court of Australia relating to the appointment of a liquidator as a receiver for the purposes of realising trust assets (see, for example, McLean v Hill, in the matter of TMC Plumbing & Drainage Pty Ltd (in liq) [2019] FCA 1439 (McLean v Hill); Cremin, in the matter of Brimson Pty Ltd (in liq) [2019] FCA 1023; Knight, in the matter of Second ICO Pty Ltd (In Liq) [2020] FCA 608; Sanderson, in the matter of Taylorsix Pty Ltd (in liq) [2021] FCA 1123) under section 57(1) of the Federal Court of Australia Act 1976 (Cth), being the equivalent provision to section 25(9) of the Supreme Court Act.
28. The relevant principles arising from these decisions are helpfully summarised in McLean v Hill at [22] to [25]:
(a) A company that is the trustee of a trading trust has a right of indemnity to resort to the trust assets to vindicate its right to be exonerated from a liability that it has incurred in the course of carrying out trust business. In circumstances where such a company goes into liquidation, its right of indemnity and accompanying equitable lien over the trust assets endures, notwithstanding that the company has been removed as trustee of the trust and only holds the trust assets as a bare trustee: see Jones v Matrix Partner Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) (2018) 260 FCR 310 (Jones v Matrix) at [85], [142], [198].
(b) There has, until recently, been a difference of opinion as to whether, in such circumstances, the liquidator's power to sell the 'property of the company' in s 477(2)(c) of the Corporations Act permits him or her to sell trust assets: see Aced Kang Investments Pty Ltd (in liq), in the matter of Aced Kang Investments Pty Ltd (in liq) [2017] FCA 476 at [12]. It is now settled that the liquidator of an insolvent (former) corporate trustee cannot sell the trust's property without order of the Court, or by appointment of a receiver over the trust assets: see Jones v Matrix at [44] per Allsop CJ (Farrell J agreeing at [196]); Re Stansfield DIY Wealth Pty Ltd (in liq) (2014) 291 FLR 17 at [10]; Apostolou v VA Corporation of Aust Pty Ltd [2011] FCAFC 103 at [45]. The rationale for this position is that, on a proper understanding, the trust assets are not the 'property of the company', but are instead trust property in which the corporate trustee has a proprietary interest by way of lien or charge to secure its right of exoneration: see Jones v Matrix at [89]. Thus, to the extent that the subject of a sale is the whole of a trust asset, rather than merely the company's lien or charge in respect of that asset, it is not authorised by the power of sale in s 477(2)(c) of the Corporations Act.
(c) The courts are generally willing, upon an appropriate application, to make orders permitting the liquidator of a (former) corporate trustee to sell trust assets. In situations where the property of the trust will be exhausted following its sale and subsequent distribution to creditors, it may be appropriate merely to give the liquidator a power of sale: see Jones v Matrix at [91]. The more common course is, however, for the liquidator of the insolvent (former) corporate trustee to apply to be appointed a receiver for the purpose of selling the trust assets and distributing the proceeds among trust creditors: see Jones v Matrix at [142] per Siopis J; Amirbeaggi, in the matter of Simpkiss Pty Ltd (in liq) [2018] FCA 2121; Taylor v CJ & KL Bond Super Pty Ltd, in the matter of CJ & KL Bond Pty Ltd (in liq) [2018] FCA 1430; Staatz v Berry, in the matter of Wollumbin Horizons Pty Ltd (in liq) (No 3) [2019] FCA 924. Orders appointing a liquidator as a receiver for this purpose may be made nunc pro tunc to authorise sales of trust assets that have already occurred: Jones v Matrix at [91], [152], [198].
(d) The proceeds from an exercise of a corporate trustee's right of exoneration may only be applied in satisfaction of the trust liabilities to which that right relates: see Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20 (Carter Holt) at [40] per Kiefel 11 CJ, Keane and Edelman JJ; at [92] per Bell, Gageler and Nettle JJ; at [106] per Gordon J. Thus, the liquidator of a (former) corporate trustee may only apply the proceeds of a sale of trust assets to satisfy debts owed to trust creditors (as opposed to general creditors). This includes the costs of the liquidation (including the liquidator's remuneration) because such costs constitute debts incurred by the company in discharging the duties imposed by the trust: Re Suco Gold Pty Ltd (in liq) (1983) 33 SASR 99 at 110 per King CJ; Jones v Matrix at [105]-[106]. In circumstances where a company has only ever acted as a trustee of one trust and that has been the totality of its affairs, no issue arises as to the application of trust assets to general creditors because all of the company's creditors are trust creditors. In this situation, the proceeds from the exercise of the right of exoneration are to be distributed to the trust creditors in accordance with the order of priority prescribed by the Corporations Act: Jones v Matrix at [100]-[108] per Allsop CJ; see also Carter Holt at [93]-[96] per Bell, Gageler and Nettle JJ; at [111], [156]-[158] per Gordon J.
29.In McLean v Hill, the Court made the following orders:
1. Pursuant to s 57(1) of the Federal Court of Australia Act 1976 (Cth), Neil Steward McLean, a registered liquidator, be appointed without security as receiver and manager over the business and assets of the TMC Hill Family Trust (Receiver).
2. The Receiver have, in respect of the business and assets of the trust referred to in paragraph 1, the powers that a receiver has in respect of the business and property of a company under s 420 of the Corporations Act 2001 (Cth) (other than s 420(2)(s), (t), (u) and (w)) as if the reference in that section to “the corporation” were a reference to the trust including, without limitation, the power to do all things necessary or convenient to:
(a) call upon and recover any moneys lent or advanced by the trust to a beneficiary of the trust;
(b) pay the creditors of the trust from the proceeds of the assets, pursuant to the priorities prescribed under the provisions of the Corporations Act;
(c) compromise any claims in its capacity as trustee of the trust or against any of the trust property on any terms the Receiver sees fit;
(d) bring any claim against any party on behalf of the trust; and
(e) execute any documents relating to the trust.
3. The costs, expenses and remuneration incurred by Mr McLean as liquidator of the second plaintiff and as the Receiver, including the costs of this application, be paid in priority from the property of the trust (including any proceeds from the recovery of any moneys owed to the trust).
4. There be liberty to apply to any person who can demonstrate sufficient interest to modify or discharge paragraphs 1 to 3 on not less than 48 hours' written notice to the plaintiffs.
5. The Receiver file and serve an affidavit upon completion of the receivership.
Application of law to facts
30. The Company is entitled to a right of indemnity with respect to debts incurred in its capacity as trustee of the Whitby Trust. That right of indemnity endures notwithstanding that the Company has been placed into liquidation and removed as trustee of the Whitby Trust.
31. The Liquidators seek to be appointed as receivers and managers of the Receivership Assets, including the GHT(WA) Indemnity Claim and the Silver Link Claims, so that any amounts recovered can be distributed to creditors of the Whitby Trust in accordance with the priorities prescribed under the Corporations Act.
In response to the plaintiffs' claim, the defendant makes three points. First, it says the authorities relied upon by the plaintiffs concern appointing receivers and managers to trading trusts - that is to say, trusts which as at the date of the order are trading. The defendant says the Whitby Trust was, but no longer is, a trading trust. It no longer carries on an active business. The only activity of the trust is awaiting the sale by the existing receiver of the remaining lots arising from the trusts former business as a property developer. The defendant says the plaintiffs clearly recognise this to be the case because the orders sought by the plaintiffs do not extend 'in respect of the business' of the trust.
Second, the defendant says the authorities relied upon by the plaintiffs concern appointing receivers and managers so that they may sell assets of a trust in respect of which the insolvent former trustee is then merely a bare trustee having been removed as trustee of the trust. In this case, the assets being alleged causes of action are not sought to be sold but rather to be realised by taking proceedings.
Third, it is said that notwithstanding that it is no longer trustee of the trust, Whitby Land Company Pty Ltd holds the causes of action. It was submitted this is because both the GHT(WA) indemnity claim and the Silver Link claims are claims personal to the company at law and in equity. That being so, the liquidators can commence and prosecute the alleged causes of action in the name of the company. There is no impediment either at law or under the Corporations Act to the liquidators taking that course.
These submissions must be accepted. The defendant's propositions can be tested in this way. If the plaintiffs are appointed as receivers of the assets of the Whitby Trust what precisely does that empower them to do? It cannot empower them to take action with respect to the two identified claims. As the defendant says, these claims are personal to the company. There is accordingly no utility in making the orders sought by the plaintiffs.
The defendant also notes that even if a challenge were made by the prospective defendant in any such proceedings to the plaintiffs' ability to bring the actions there can be no issue that an order could be sought and if appropriate, name in those proceedings nuc pro tunc. Reference was made by the defendant to a number of decisions on this question and in particular to the decision in Jones v Matrix Partners Pty Ltd; Re Killarnee Civil and Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310. Counsel for the defendant emphasised the ability of the court to make a nuc pro tunc order was not in and of itself a reason for not making the orders sought by the plaintiffs if those orders were appropriate. Rather, it acted as a safeguard so that if orders were not made the plaintiffs were not shut out entirely if a point was taken by the defendant in proceedings issued in relation to the claims.
A number of other matters were raised by the defendant all of which had to do with the form of any orders that might be made. Given the conclusion I have reached it is unnecessary for me to deal with these issues in any detail. In fact, counsel for the plaintiffs in his oral submissions conceded any orders made should be more limited in scope than the orders proposed in the originating process and also conceded no order for costs ought be made pending any actions taken in relation to the claims. Those concessions were properly made. Had I determined it was appropriate to appoint the plaintiffs as receivers I would have varied the orders in line with the submissions made on behalf of the defendant.
There was one remaining issue on which the parties differed. That was the question as to whether, if receivers were to be appointed, the present plaintiffs were the proper parties to be appointed receivers. It was the defendant's position the plaintiffs, as liquidators, had a conflict of interest as to whether or not the assets which were sold gave rise to the payments said to be the subject of the claims were in fact assets of the trust. It was said this conflict arose because the plaintiffs, as liquidators of MN(WA) Pty Ltd, have lodged a caveat over the Whitby land claiming the land is beneficially owned by MN(WA) Pty ltd. It is unnecessary for me to deal with this issue in any detail. However, I note that during the course of his submissions, counsel for the plaintiffs indicated the caveat over the Whitby land would be removed. However, this still leaves a real question as to whether or not the present plaintiffs would have a conflict of interest if they were to be appointed receivers. Without determining the question, I would make the point that if an application to be appointed receivers became necessary in the course of litigating the claims, the present plaintiff's would have to consider carefully whether persons other than them would be most appropriately appointed as receivers.
Accordingly I would dismiss this application. Within seven days of the date of these orders, if no agreement can be reached, the parties should file short submissions as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Associate to Master Sanderson
15 NOVEMBER 2022
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