In the matter of Vivo International Corporation Pty Limited (in liquidation) [2015] NSWSC 1556

In the matter of Vivo International Corporation Pty Limited (in liquidation) [2015] NSWSC 1556

The $100,000 DOCA termination sum was provided for a specific purpose (public examinations and recovery actions); as that purpose failed, the sum is subject to a Quistclose trust and should revert to TiVo unless affected by assignment, which was not found to cover a claim for return of this sum. Liquidator is entitled only to costs of these proceedings from the sum; balance to be paid to second and third defendants in equal shares.

Jurisdiction
Australia
Judgment Date
25 August 2015
Procedural Posture
Judicial Advice Application / Final Decision and Orders
Outcome
Judicial advice given; orders made as to entitlement and payment from DOCA termination sum.
Legal Topics
["liquidator's Remuneration" 'quistclose Trust' 'winding Up' 'assignment of Claims']
['corporations' 'equity'] ["liquidator's Remuneration" 'quistclose Trust' 'winding Up' 'assignment of Claims']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Judicial Advice Application / Final Decision and Orders

Legal Issues

  1. 1 ['Characterisation of DOCA termination sum' "Liquidator's entitlement to remuneration and expenses from DOCA termination sum" 'Application of Quistclose trust doctrine to moneys advanced for specific purpose' 'Assignment of claims by settlement deed']

Ratio Decidendi

The $100,000 DOCA termination sum was provided for a specific purpose (public examinations and recovery actions); as that purpose failed, the sum is subject to a Quistclose trust and should revert to TiVo unless affected by assignment, which was not found to cover a claim for return of this sum. Liquidator is entitled only to costs of these proceedings from the sum; balance to be paid to second and third defendants in equal shares.

Court Disposition

Judicial advice given; orders made as to entitlement and payment from DOCA termination sum.

Orders

  • ['Liquidator not justified in recovering remuneration, costs, and expenses incurred as liquidator from DOCA termination sum or in paying balance to first defendant.' 'Liquidator justified in retaining costs of these proceedings on the indemnity basis out of DOCA termination sum, and paying balance to second and...