Aced Kang Investments Pty Ltd (in liq), in the matter of Aced Kang Investments Pty Ltd (in liq) [2017] FCA 476

Aced Kang Investments Pty Ltd (in liq), in the matter of Aced Kang Investments Pty Ltd (in liq) [2017] FCA 476

Because the Company had ceased to be trustee on liquidation but remained bare trustee of trust property, the Trust was hopelessly insolvent, no other trustee had been appointed or was realistically likely to be appointed, and the authorities left uncertain whether s 477(2)(c) empowered the liquidator to sell the trust assets, it was appropriate under s 57(1) of the Federal Court of Australia Act 1976 (Cth) to appoint Mr Gollant without security as receiver and manager over the Trust's business and assets, confer powers to sell and distribute the proceeds, give priority for his costs, expenses and remuneration from trust property, and grant relief under s 1318 of the Corporations Act 2001...

Jurisdiction
Australia
Judgment Date
08 May 2017
Procedural Posture
Corporations External Administration Application Concerning a Company in Liquidation That Is a Bare Trustee / Ex Parte Application for Appointment of the Liquidator as Receiver and Manager of Trust Property and Relief Under S 1318
Outcome
Application granted; Mr Gollant appointed without security as receiver and manager over the business and assets of the Kang Family Trust and relief granted under s 1318 of the Corporations Act 2001 (Cth).
Legal Topics
['external Administration' 'winding Up' 'bare Trustee' "liquidator's Power of Sale" 'appointment of Receiver and Manager' 'trust Property' 'relief From Liability']
['corporations' 'insolvency' 'trusts'] ['external Administration' 'winding Up' 'bare Trustee' "liquidator's Power of Sale" 'appointment of Receiver and Manager' 'trust Property' 'relief From Liability']

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Procedural Posture

Corporations External Administration Application Concerning a Company in Liquidation That Is a Bare Trustee / Ex Parte Application for Appointment of the Liquidator as Receiver and Manager of Trust Property and Relief Under S 1318

Legal Issues

  1. 1 ['Whether the liquidator of a company in liquidation that has ceased to be trustee but remains bare trustee of trust property should be appointed as receiver and manager over the business and assets of the trust.' 'Whether the liquidator should be excused under s 1318 of the Corporations Act 2001 (Cth) for breaches, failures or omissions relating to dealing with trust property.']

Ratio Decidendi

Because the Company had ceased to be trustee on liquidation but remained bare trustee of trust property, the Trust was hopelessly insolvent, no other trustee had been appointed or was realistically likely to be appointed, and the authorities left uncertain whether s 477(2)(c) empowered the liquidator to sell the trust assets, it was appropriate under s 57(1) of the Federal Court of Australia Act 1976 (Cth) to appoint Mr Gollant without security as receiver and manager over the Trust's business and assets, confer powers to sell and distribute the proceeds, give priority for his costs, expenses and remuneration from trust property, and grant relief under s 1318 of the Corporations Act 2001...

Court Disposition

Application granted; Mr Gollant appointed without security as receiver and manager over the business and assets of the Kang Family Trust and relief granted under s 1318 of the Corporations Act 2001 (Cth).

Orders

  • ['Pursuant to s 1318 of the Corporations Act 2001 (Cth), Mathew Terence Gollant, in his capacity as liquidator of Aced Kang Investments Pty Ltd (in liq), acted honestly and ought fairly to be excused for any breaches, failures, or omissions relating to the administration of the Company in dealing with the property...