In the matter of Mecfab Holdings Pty Ltd [2015] NSWSC 46

In the matter of Mecfab Holdings Pty Ltd [2015] NSWSC 46

Because the company had been removed as trustee upon the administrator's appointment and no new trustee had been appointed, while the company appeared to have a right of indemnity secured over the trust assets for liabilities incurred as trustee, it was expedient to appoint the plaintiff as receiver and manager to secure and preserve the trust business and assets and facilitate administration. The appointment was made only until further order, with powers assimilated to those of an administrator and without authority to distribute trust assets absent further direction, because the outcome of the company administration remained unknown.

Jurisdiction
Australia
Judgment Date
09 February 2015
Procedural Posture
Corporations External Administration Application Concerning a Voluntary Administrator of a Corporate Trustee of a Trading Trust / Application for Leave to File Originating Process and for Appointment of the Administrator as Receiver and Manager of Trust Business and Property
Outcome
Leave to file the originating process was granted and, until further order, the plaintiff was appointed without security as receiver and manager of the business and property of the Trust, with powers corresponding to those of an administrator and subject to restrictions on distribution.
Legal Topics
['voluntary Administration' 'trading Trust' 'corporate Trustee Removed on Appointment of Administrator' "trustee's Right of Indemnity" 'appointment of Receiver and Manager']
['corporations' 'external Administration' 'trusts' 'receivership'] ['voluntary Administration' 'trading Trust' 'corporate Trustee Removed on Appointment of Administrator' "trustee's Right of Indemnity" 'appointment of Receiver and Manager']

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Procedural Posture

Corporations External Administration Application Concerning a Voluntary Administrator of a Corporate Trustee of a Trading Trust / Application for Leave to File Originating Process and for Appointment of the Administrator as Receiver and Manager of Trust Business and Property

Legal Issues

  1. 1 ['Whether the voluntary administrator of a company that had been trustee of a trading trust should be appointed receiver and manager of the trust business and property after the trustee was removed under the trust deed upon appointment of an administrator.' 'Whether the appointment should be interim and for preservation rather than distribution of trust property.' 'Whether the beneficiaries were proper and necessary parties to the application.']

Ratio Decidendi

Because the company had been removed as trustee upon the administrator's appointment and no new trustee had been appointed, while the company appeared to have a right of indemnity secured over the trust assets for liabilities incurred as trustee, it was expedient to appoint the plaintiff as receiver and manager to secure and preserve the trust business and assets and facilitate administration. The appointment was made only until further order, with powers assimilated to those of an administrator and without authority to distribute trust assets absent further direction, because the outcome of the company administration remained unknown.

Court Disposition

Leave to file the originating process was granted and, until further order, the plaintiff was appointed without security as receiver and manager of the business and property of the Trust, with powers corresponding to those of an administrator and subject to restrictions on distribution.

Orders

  • ['Upon the undertaking of Sally Nash, solicitor, to pay the appropriate filing fees, the Court grants leave to Darren John Vardy to file an originating process in the form initialled by Brereton J, dated 9 February 2015 and placed with the papers, subject to the addition thereto of Christopher Paul Nicholson,...