Mutton (Liquidator), in the matter of Balsub Pty Ltd (In Liquidation) [2020] FCA 741

Mutton (Liquidator), in the matter of Balsub Pty Ltd (In Liquidation) [2020] FCA 741

Orders were made under s 1318 of the Corporations Act, s 63 of the Trustee Act, and s 90-15 of the Insolvency Practice Schedule (Corporations) giving the liquidator power to deal with BF Trust assets and indemnity for trust expenses and remuneration, as the evidence supported Balsub acting primarily as trustee. Relief from liability for past dealings was refused due to insufficient evidence but liberty was granted to reapply.

Jurisdiction
Australia
Judgment Date
01 June 2020
Procedural Posture
Application / Interlocutory Order and Directions on the Papers
Outcome
Application granted in part; orders made on terms sought save for relief from liability for past dealings, liberty to apply granted.
Legal Topics
['corporate Trustee Liquidation' 'powers of Liquidator Over Trust Assets' 'orders Permitting Dealing With Trust Property' "liquidator's Indemnity" 'relief From Liability in Liquidation']
['corporations Law' 'trusts and Equity' 'insolvency'] ['corporate Trustee Liquidation' 'powers of Liquidator Over Trust Assets' 'orders Permitting Dealing With Trust Property' "liquidator's Indemnity" 'relief From Liability in Liquidation']

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Procedural Posture

Application / Interlocutory Order and Directions on the Papers

Legal Issues

  1. 1 ['Whether the liquidator is justified in proceeding on the basis that Balsub Pty Ltd carried on business as trustee of the BF Trust except for employees.' 'Whether orders should be made permitting the liquidator to deal with trust property notwithstanding removal as trustee under the trust deed.' 'Whether the liquidator should be relieved of liability for past dealings with trust property under s 1318 Corporations Act and s 67 Trustee Act.' 'Whether the liquidator is entitled to pay remuneration and expenses from trust assets and be indemnified accordingly.']

Ratio Decidendi

Orders were made under s 1318 of the Corporations Act, s 63 of the Trustee Act, and s 90-15 of the Insolvency Practice Schedule (Corporations) giving the liquidator power to deal with BF Trust assets and indemnity for trust expenses and remuneration, as the evidence supported Balsub acting primarily as trustee. Relief from liability for past dealings was refused due to insufficient evidence but liberty was granted to reapply.

Court Disposition

Application granted in part; orders made on terms sought save for relief from liability for past dealings, liberty to apply granted.

Orders

  • ['Declarations as to trustee capacity and creditor status made under s 1318 Corporations Act and s 90-15 IPS.' 'Powers to sell and compromise trust claims under s 63 Trustee Act granted to Balsub as bare trustee.' 'Remuneration, costs and disbursements of the liquidator to be paid from trust assets on an indemnity...