Dreiberg & Anor v Bettles and Carter as liquidators of Corindi Beach Developments Pty Ltd & 5 Ors [2007] NSWSC 1204

Dreiberg & Anor v Bettles and Carter as liquidators of Corindi Beach Developments Pty Ltd & 5 Ors [2007] NSWSC 1204

CBD was removed as trustee and the liquidators were appointed trustees in their personal capacity because an insolvent company in liquidation should not remain trustee, the parties agreed to the appointment, the statutory power existed, and a possible future conflict should not be assumed to be a real present conflict; directions could be sought if difficulties arose. The defendants were not awarded costs because the plaintiffs' discontinuance of substantial claims was not treated as capitulation, both sides had acted reasonably, and the Court would not try the merits solely to determine costs.

Jurisdiction
Australia
Judgment Date
30 October 2007
Procedural Posture
Equity Division Corporations List Proceeding by Further Amended Originating Process Concerning Liquidators' Admission of Proofs of Debt, Winding Up Resolutions, Deed of Company Arrangement Relief, and Removal and Replacement of a Trustee / Judgment Making Final Orders After the Parties Reached Common Ground on Appointment of the Liquidators as Trustees and After Determination of Costs
Outcome
Liquidators appointed as trustees of the Corindi Cabin Developments Unit Trust; trust property vested in them; no order as to costs between the plaintiffs and specified defendants; second further amended originating process otherwise dismissed.
Legal Topics
['liquidators' 'company Trustee in Liquidation' 'appointment of New Trustee' 'conflict of Interest' 'vesting Order' 'costs Where Proceedings Cease Without Hearing']
['corporations' 'trusts' 'civil Procedure'] ['liquidators' 'company Trustee in Liquidation' 'appointment of New Trustee' 'conflict of Interest' 'vesting Order' 'costs Where Proceedings Cease Without Hearing']

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Procedural Posture

Equity Division Corporations List Proceeding by Further Amended Originating Process Concerning Liquidators' Admission of Proofs of Debt, Winding Up Resolutions, Deed of Company Arrangement Relief, and Removal and Replacement of a Trustee / Judgment Making Final Orders After the Parties Reached Common Ground on Appointment of the Liquidators as Trustees and After Determination of Costs

Legal Issues

  1. 1 ['Whether Corindi Beach Developments Pty Ltd (in liquidation) should be removed as trustee of the Corindi Cabin Developments Unit Trust and replaced by its liquidators in their personal capacity.' "Whether the possibility of a conflict between the liquidators' duties as liquidators and as trustees precluded their appointment as trustees." "Whether the second, third, fourth, fifth, sixth and seventh defendants should receive costs where the plaintiffs did not pursue substantial claims challenging creditors' resolutions."]

Ratio Decidendi

CBD was removed as trustee and the liquidators were appointed trustees in their personal capacity because an insolvent company in liquidation should not remain trustee, the parties agreed to the appointment, the statutory power existed, and a possible future conflict should not be assumed to be a real present conflict; directions could be sought if difficulties arose. The defendants were not awarded costs because the plaintiffs' discontinuance of substantial claims was not treated as capitulation, both sides had acted reasonably, and the Court would not try the merits solely to determine costs.

Court Disposition

Liquidators appointed as trustees of the Corindi Cabin Developments Unit Trust; trust property vested in them; no order as to costs between the plaintiffs and specified defendants; second further amended originating process otherwise dismissed.

Orders

  • ['Order that Jason Walter Bettles and Susan Ruth Carter of Level 6, 50 Cavill Avenue, Surfers Paradise, Queensland, be appointed as trustees of the Corindi Cabin Developments Unit Trust, established by a trust deed dated 6 May 2002, in substitution for Corindi Beach Developments Pty Ltd (in liquidation).' 'Order...