Pleash, in the matter of Suncoast Restoration Pty Ltd (in liq) [2013] FCA 355

Pleash, in the matter of Suncoast Restoration Pty Ltd (in liq) [2013] FCA 355

Where liquidators of a corporate trustee, acting honestly and on legal advice, have sold trust assets without realising the company had become a bare trustee with no power of sale, the court may excuse the liquidators from liability under s 1318 of the Corporations Act 2001 (Cth) and s 310 of the Superannuation Industry (Supervision) Act 1993 (Cth), excuse the company under s 76 of the Trusts Act 1973 (Qld), confer or deem the necessary power of sale retrospectively under s 94 of the Trusts Act, and confirm indemnity out of trust assets for liabilities and winding up costs, especially in the absence of a new trustee and where beneficiaries have suffered no loss.

Jurisdiction
Australia
Judgment Date
18 April 2013
Procedural Posture
Civil (corporations/trusts/liquidation) / Final Orders After Application by Liquidators for Excusal and Directions
Outcome
Application by liquidators granted; liquidators and company excused for breaches, indemnity confirmed, sales deemed valid, and administration directions made.
Legal Topics
["liquidators' Powers and Duties" 'excusal for Breach of Trust' 'corporate Trustee Removal' 'indemnification From Trust Assets' 'bare Trustee Powers' 'superannuation Funds Administration']
['corporations Law' 'equity and Trusts' 'superannuation Law' 'insolvency'] ["liquidators' Powers and Duties" 'excusal for Breach of Trust' 'corporate Trustee Removal' 'indemnification From Trust Assets' 'bare Trustee Powers' 'superannuation Funds Administration']

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Procedural Posture

Civil (corporations/trusts/liquidation) / Final Orders After Application by Liquidators for Excusal and Directions

Legal Issues

  1. 1 ['Whether liquidators should be excused under s 1318 of the Corporations Act 2001 (Cth) for sales of trust assets made without knowledge the company was a bare trustee' 'Whether liquidators should be excused under s 310 of the Superannuation Industry (Supervision) Act 1993 (Cth)' 'Whether the company (Suncoast Restoration Pty Ltd) should be excused under s 76 of the Trusts Act 1973 (Qld)' 'Whether sales should be deemed sales within trustee powers under s 94 of the Trusts Act 1973 (Qld)' 'Whether the company and/or liquidators should have indemnity from the trust fund for debts and winding up costs']

Ratio Decidendi

Where liquidators of a corporate trustee, acting honestly and on legal advice, have sold trust assets without realising the company had become a bare trustee with no power of sale, the court may excuse the liquidators from liability under s 1318 of the Corporations Act 2001 (Cth) and s 310 of the Superannuation Industry (Supervision) Act 1993 (Cth), excuse the company under s 76 of the Trusts Act 1973 (Qld), confer or deem the necessary power of sale retrospectively under s 94 of the Trusts Act, and confirm indemnity out of trust assets for liabilities and winding up costs, especially in the absence of a new trustee and where beneficiaries have suffered no loss.

Court Disposition

Application by liquidators granted; liquidators and company excused for breaches, indemnity confirmed, sales deemed valid, and administration directions made.

Orders

  • ['Commissioner of Taxation joined as defendant.' 'Plaintiffs granted leave to amend originating process.' 'Previous order amended to refer to correct section of Trusts Act.' 'Liquidators declared to have acted honestly and excused under s 1318 of Corporations Act 2001 (Cth) and s 310 of the Superannuation Industry...