Deppeler, in the matter of Asten Holdings Pty Ltd (in liq) [2020] FCA 1107

Deppeler, in the matter of Asten Holdings Pty Ltd (in liq) [2020] FCA 1107

The evidence showed that the Company operated exclusively as trustee of The Clogs Unit Trust, that all of its assets were properly characterised as trust property, and that no replacement trustee had been appointed after the Company became a bare trustee on liquidation. It was therefore appropriate under s 90-15 of Schedule 2 to the Corporations Act 2001 (Cth) and s 63 of the Trustee Act 1958 (Vic) to make directions and confer power enabling the Company and the Liquidators to deal with, apply and distribute the trust property under Parts 5.5 and 5.6 of the Corporations Act. Because the Liquidators' past dealings were inadvertent, honest and reasonable, and because the Company had no...

Jurisdiction
Australia
Judgment Date
30 July 2020
Procedural Posture
Application by Liquidators for Orders and Directions Concerning Assets of an Insolvent Corporate Trustee / Final Orders and Reasons for Judgment
Outcome
Orders sought by the Liquidators were made.
Legal Topics
['liquidators of Former Corporate Trustee' 'bare Trustee' 'trust Property' 'distribution of Trust Assets in Winding Up' "liquidators' Remuneration and Expenses" 'relief From Liability']
['corporations' 'corporate Insolvency' 'trusts'] ['liquidators of Former Corporate Trustee' 'bare Trustee' 'trust Property' 'distribution of Trust Assets in Winding Up' "liquidators' Remuneration and Expenses" 'relief From Liability']

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Procedural Posture

Application by Liquidators for Orders and Directions Concerning Assets of an Insolvent Corporate Trustee / Final Orders and Reasons for Judgment

Legal Issues

  1. 1 ['Whether the Company carried on business in its capacity as trustee of The Clogs Unit Trust and whether all of its assets were trust property.' 'Whether the Company and the Liquidators should be empowered or directed to deal with, hold, apply and distribute trust property under Parts 5.5 and 5.6 of the Corporations Act 2001 (Cth).' 'Whether the Liquidators should be relieved from liability for past dealings with trust property after the Company ceased to hold office as trustee.' "Whether the Liquidators' remuneration, costs and expenses should be paid from trust property and according to the priority in s 556(1) of the Corporations Act 2001 (Cth)."]

Ratio Decidendi

The evidence showed that the Company operated exclusively as trustee of The Clogs Unit Trust, that all of its assets were properly characterised as trust property, and that no replacement trustee had been appointed after the Company became a bare trustee on liquidation. It was therefore appropriate under s 90-15 of Schedule 2 to the Corporations Act 2001 (Cth) and s 63 of the Trustee Act 1958 (Vic) to make directions and confer power enabling the Company and the Liquidators to deal with, apply and distribute the trust property under Parts 5.5 and 5.6 of the Corporations Act. Because the Liquidators' past dealings were inadvertent, honest and reasonable, and because the Company had no...

Court Disposition

Orders sought by the Liquidators were made.

Orders

  • ['Pursuant to s 90-15 of Schedule 2 – Insolvency Practice Schedule (Corporations) to the Corporations Act 2001 (Cth), the Liquidators are justified and acting reasonably in proceeding on the basis that the Company carried on business in its capacity as trustee of The Clogs Unit Trust and that all assets of the...