Bamboo Direct Pty Limited (in liq), in the matter of Bamboo Direct Pty Limited (in liq) [2016] FCA 264

Bamboo Direct Pty Limited (in liq), in the matter of Bamboo Direct Pty Limited (in liq) [2016] FCA 264

The Category 1 STCs were validly and absolutely assigned to Bamboo Direct, and the documents did not objectively show an intention to create a trust over the STCs or their sale proceeds: they referred to a monetary payment rather than remittal of sale proceeds, contained no agreement that proceeds were to be kept separate from company funds, and did not describe a trustee-beneficiary relationship. Any unpaid customer therefore had, at most, a personal claim provable in the winding up, and the net sale proceeds were property of Bamboo Direct within s 501 of the Corporations Act 2001 (Cth).

Jurisdiction
Australia
Judgment Date
22 March 2016
Procedural Posture
Proceeding Commenced Under S 511 of the Corporations Act 2001 (cth) And, to the Extent Necessary and Appropriate, S 479(3), Seeking Directions Concerning Proceeds of Sale of Small Scale Technology Certificates in a Winding Up / Final Judgment on Application for Directions
Outcome
Directions made that the liquidator would be justified in treating and distributing the Category 1 STC sale proceeds as property of Bamboo Direct; the liquidator was entitled to recover costs and expenses of the proceeding in the winding up.
Legal Topics
['liquidator Directions' 'winding Up' 'company Property' 'trust Property' 'small Scale Technology Certificates' 'assignment of Rights' 'secured Creditors' 'unsecured Creditors' 'leave to Be Heard']
['corporations' 'bankruptcy and Insolvency' 'practice and Procedure'] ['liquidator Directions' 'winding Up' 'company Property' 'trust Property' 'small Scale Technology Certificates' 'assignment of Rights' 'secured Creditors' 'unsecured Creditors' 'leave to Be Heard']

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Procedural Posture

Proceeding Commenced Under S 511 of the Corporations Act 2001 (cth) And, to the Extent Necessary and Appropriate, S 479(3), Seeking Directions Concerning Proceeds of Sale of Small Scale Technology Certificates in a Winding Up / Final Judgment on Application for Directions

Legal Issues

  1. 1 ['Whether Bamboo Direct held the proceeds from the sale of Category 1 Small-scale Technology Certificates in its own right as property of the company within the meaning of s 501 of the Corporations Act 2001 (Cth).' 'Whether the proceeds were held on trust for potential claimant customers who had assigned rights to create STCs to Bamboo Direct.' 'Whether the liquidator would be justified in distributing the proceeds as property of the company in the winding up.' 'Whether the Court should make substantive directions affecting potential claimant customers who were given notice and an opportunity to be heard.']

Ratio Decidendi

The Category 1 STCs were validly and absolutely assigned to Bamboo Direct, and the documents did not objectively show an intention to create a trust over the STCs or their sale proceeds: they referred to a monetary payment rather than remittal of sale proceeds, contained no agreement that proceeds were to be kept separate from company funds, and did not describe a trustee-beneficiary relationship. Any unpaid customer therefore had, at most, a personal claim provable in the winding up, and the net sale proceeds were property of Bamboo Direct within s 501 of the Corporations Act 2001 (Cth).

Court Disposition

Directions made that the liquidator would be justified in treating and distributing the Category 1 STC sale proceeds as property of Bamboo Direct; the liquidator was entitled to recover costs and expenses of the proceeding in the winding up.

Orders

  • ['The second plaintiff would be justified in deciding that the first plaintiff holds the proceeds from the sale of Small-scale Technology Certificates referred to as Category 1 STCs in the affidavit of the liquidator filed with the originating process in its own right and that the proceeds comprise part of the...