Cremin, in the matter of Brimson Pty Ltd (in liq) [2019] FCA 1023

Cremin, in the matter of Brimson Pty Ltd (in liq) [2019] FCA 1023

Where a corporate trustee goes into liquidation and the trust deed removes the trustee or limits its powers, the only proper method for the liquidator to sell trust assets and pay trust creditors is by court order appointing the liquidator as receiver and manager with powers analogous to s 420 of the Corporations Act; liquidator's costs and remuneration are to be paid in priority from trust property.

Jurisdiction
Australia
Judgment Date
25 June 2019
Procedural Posture
Corporate Insolvency, Liquidator Application / Final Orders, Reasons for Judgment
Outcome
Application granted; orders made appointing liquidator as receiver and manager over trust assets, dispensing with certain procedural requirements, granting liquidator powers to carry on, sell business and assets, pay creditors in priority, and pay costs and remuneration from trust assets.
Legal Topics
['corporate Trustee Liquidation' 'liquidator Powers' 'trust Asset Realisation' 'right of Indemnity' 'indemnity Out of Trust Assets' 'receiver Appointment']
['corporations Law' 'insolvency Law' 'trusts Law'] ['corporate Trustee Liquidation' 'liquidator Powers' 'trust Asset Realisation' 'right of Indemnity' 'indemnity Out of Trust Assets' 'receiver Appointment']

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Procedural Posture

Corporate Insolvency, Liquidator Application / Final Orders, Reasons for Judgment

Legal Issues

  1. 1 ['Whether the liquidator has power to sell trust assets to satisfy trust creditors' 'Whether the liquidator should be appointed receiver and manager over trust property' 'Whether costs, expenses, and remuneration ought to be paid in priority from trust property' 'Relief for the liquidator relating to any breaches, failures, or omissions concerning administration of trust property']

Ratio Decidendi

Where a corporate trustee goes into liquidation and the trust deed removes the trustee or limits its powers, the only proper method for the liquidator to sell trust assets and pay trust creditors is by court order appointing the liquidator as receiver and manager with powers analogous to s 420 of the Corporations Act; liquidator's costs and remuneration are to be paid in priority from trust property.

Court Disposition

Application granted; orders made appointing liquidator as receiver and manager over trust assets, dispensing with certain procedural requirements, granting liquidator powers to carry on, sell business and assets, pay creditors in priority, and pay costs and remuneration from trust assets.

Orders

  • ['Compliance with r 2.8 of Federal Court (Corporations) Rules 2000 dispensed with.' 'Liquidator excused for breaches/omissions relating to administration of trust property.' 'Mr Cremin appointed as receiver and manager over business and assets of the Brimson Family Trust, Kane Retail Group Family Trust, and Teal...