Vouris, in the matter of Zivaust Pty Ltd (in liq) [2022] FCA 1325

Vouris, in the matter of Zivaust Pty Ltd (in liq) [2022] FCA 1325

The Court made the orders because the evidence supported that Zivaust held its assets only as trustee; orders empowering Zivaust to deal with Trust assets were appropriate to allow efficient finalisation through the DOCA; the liquidators' prior dealings with Trust assets and payments from Trust cash reserves were honest and reasonable; remuneration and expenses could properly be paid from Trust assets; appointing the current Liquidator as administrator and deed administrator would avoid duplicated work and costs and was in creditors' interests; ancillary modifications to the administration process would facilitate efficient administration; and the proposed DOCA would pay unrelated...

Jurisdiction
Australia
Judgment Date
25 October 2022
Procedural Posture
Originating Application in Corporate Insolvency and Liquidation / Final Orders on Application for Directions, Leave, Administration Related Orders, Stay and Termination of Winding Up
Outcome
Application granted; orders made substantially in the terms sought by the plaintiffs.
Legal Topics
['liquidation' 'bare Trustee Dealing With Trust Assets' 'voluntary Administration' 'deed of Company Arrangement' 'liquidator Remuneration and Expenses' 'relief From Liability' 'stay and Termination of Winding Up']
['corporations Law' 'corporate Insolvency' 'trusts'] ['liquidation' 'bare Trustee Dealing With Trust Assets' 'voluntary Administration' 'deed of Company Arrangement' 'liquidator Remuneration and Expenses' 'relief From Liability' 'stay and Termination of Winding Up']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Originating Application in Corporate Insolvency and Liquidation / Final Orders on Application for Directions, Leave, Administration Related Orders, Stay and Termination of Winding Up

Legal Issues

  1. 1 ['Whether the Liquidator was justified in proceeding on the basis that Zivaust carried on business as trustee of the Marie Gold Family Trust and held all assets as trust assets.' 'Whether Zivaust, as bare trustee, should be empowered to deal with, hold, apply and distribute the Trust assets.' 'Whether the Liquidator and former liquidators should be relieved from liability for dealings with Trust assets and payments from realisations.' 'Whether the Liquidator and former liquidators were entitled to remuneration, costs and expenses from Trust assets.' 'Whether leave should be granted for the Liquidator to be appointed administrator of the Companies and deed administrator of any DOCA.' 'Whether ancillary orders should be made modifying the operation of Pt 5.3A of the Corporations Act for the proposed administrations.' 'Whether the winding up of the Companies should be stayed and later terminated upon full effectuation of a DOCA.']

Ratio Decidendi

The Court made the orders because the evidence supported that Zivaust held its assets only as trustee; orders empowering Zivaust to deal with Trust assets were appropriate to allow efficient finalisation through the DOCA; the liquidators' prior dealings with Trust assets and payments from Trust cash reserves were honest and reasonable; remuneration and expenses could properly be paid from Trust assets; appointing the current Liquidator as administrator and deed administrator would avoid duplicated work and costs and was in creditors' interests; ancillary modifications to the administration process would facilitate efficient administration; and the proposed DOCA would pay unrelated...

Court Disposition

Application granted; orders made substantially in the terms sought by the plaintiffs.

Orders

  • ['Pursuant to s 90-15 of the Insolvency Practice Schedule, the Liquidator is justified and acting reasonably in proceeding on the basis that Zivaust carried on business as trustee of the Marie Gold Family Trust and that all assets and undertakings of Zivaust are Trust assets.' 'Pursuant to s 63 of the Trustee Act...