Priest, in the matter of Brikar Nominees Pty Ltd (in liquidation) [2023] FCA 910

Priest, in the matter of Brikar Nominees Pty Ltd (in liquidation) [2023] FCA 910

Given Brikar Nominees Pty Ltd only acted as trustee of the BG & KR Webb Family Trust and is now a bare trustee in liquidation, the liquidator could not deal with trust assets without court appointment as receiver; relief from liability is appropriate for prior dealings in which the liquidator acted honestly; remuneration and costs should be paid from trust assets subject to court oversight and creditor approval.

Jurisdiction
Australia
Judgment Date
04 August 2023
Procedural Posture
Corporations – Liquidation – Application for Directions/remedy / First Instance Judgment on Application for Orders Authorising Liquidator's Actions and Appointing Receiver
Outcome
Applications granted. Declarations and orders made as sought for directions, appointment of receiver, relief from liability, and payment of remuneration and expenses from trust assets.
Legal Topics
["liquidator's Powers and Liabilities" 'trust Asset Realisation in Insolvency' 'appointment of Receiver Over Trust Assets' 'relief From Breach of Trust for Liquidator' 'remuneration and Indemnity of Liquidator/receiver']
['corporations' 'insolvency' 'equity and Trusts'] ["liquidator's Powers and Liabilities" 'trust Asset Realisation in Insolvency' 'appointment of Receiver Over Trust Assets' 'relief From Breach of Trust for Liquidator' 'remuneration and Indemnity of Liquidator/receiver']

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Procedural Posture

Corporations – Liquidation – Application for Directions/remedy / First Instance Judgment on Application for Orders Authorising Liquidator's Actions and Appointing Receiver

Legal Issues

  1. 1 ["Whether the liquidator is justified in proceeding on the basis that Brikar acted solely as trustee of the Trust; whether liquidator should be relieved from liability for past dealings with trust property; whether the liquidator should be appointed as receiver and manager over trust assets; whether liquidator's remuneration and expenses can be paid from trust assets"]

Ratio Decidendi

Given Brikar Nominees Pty Ltd only acted as trustee of the BG & KR Webb Family Trust and is now a bare trustee in liquidation, the liquidator could not deal with trust assets without court appointment as receiver; relief from liability is appropriate for prior dealings in which the liquidator acted honestly; remuneration and costs should be paid from trust assets subject to court oversight and creditor approval.

Court Disposition

Applications granted. Declarations and orders made as sought for directions, appointment of receiver, relief from liability, and payment of remuneration and expenses from trust assets.

Orders

  • ['Declaration the liquidator is justified in proceeding on the basis company acted only as trustee and all assets and liabilities are trust related.' 'Liquidator relieved from liability for dealings in trust property prior to the order.' 'Liquidator appointed (nunc pro tunc) as receiver and manager over the business...