Kucianski (liquidator), in the matter of Johnson Roofing Pty Ltd (in liquidation) [2021] FCA 1370

Kucianski (liquidator), in the matter of Johnson Roofing Pty Ltd (in liquidation) [2021] FCA 1370

Because the evidence showed that Johnson Roofing Pty Ltd operated exclusively as trustee of The Johnson Unit Trust, became a bare trustee on liquidation under clause 11(c) of the Trust Deed, had no assets of its own other than rights against Trust Property, and no creditor or interested party objected, it was appropriate under s 90-15 of Schedule 2 to the Corporations Act 2001 (Cth), s 63 and s 67 of the Trustee Act 1958 (Vic), and s 1318 of the Corporations Act 2001 (Cth) to authorise and confirm the Liquidator's dealing with Trust Property, apply the winding up priority provisions, relieve him from liability for honest and reasonable past dealings, and permit payment of remuneration and...

Jurisdiction
Australia
Judgment Date
04 November 2021
Procedural Posture
Application by Liquidator for Orders Under the Corporations Act 2001 (cth) and the Trustee Act 1958 (vic) Concerning Dealing With and Distribution of Trust Property / Originating Process; Orders Made on 4 November 2021 and Reasons Delivered on 5 November 2021
Outcome
Application allowed; orders sought by the Liquidator made.
Legal Topics
['external Administration' 'corporate Trustee in Liquidation' 'bare Trustee' 'trust Property' 'liquidator Powers' 'right of Exoneration' 'remuneration and Expenses']
['corporations' 'insolvency' 'trusts'] ['external Administration' 'corporate Trustee in Liquidation' 'bare Trustee' 'trust Property' 'liquidator Powers' 'right of Exoneration' 'remuneration and Expenses']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application by Liquidator for Orders Under the Corporations Act 2001 (cth) and the Trustee Act 1958 (vic) Concerning Dealing With and Distribution of Trust Property / Originating Process; Orders Made on 4 November 2021 and Reasons Delivered on 5 November 2021

Legal Issues

  1. 1 ['Whether the Liquidator was justified and acting reasonably in proceeding on the basis that the Company carried on business and held all assets as trustee of The Johnson Unit Trust.' 'Whether the Company should be conferred power under s 63 of the Trustee Act 1958 (Vic) to act as trustee of the Trust and enable trust affairs to be finalised.' 'Whether the Liquidator could deal with, hold, apply and distribute Trust Property in accordance with Parts 5.5 and 5.6 of the Corporations Act 2001 (Cth).' 'Whether the Liquidator should be relieved from potential liability for having already dealt with or realised Trust Property and made payments from proceeds.' "Whether the Liquidator's remuneration, costs and expenses should be paid from Trust Property."]

Ratio Decidendi

Because the evidence showed that Johnson Roofing Pty Ltd operated exclusively as trustee of The Johnson Unit Trust, became a bare trustee on liquidation under clause 11(c) of the Trust Deed, had no assets of its own other than rights against Trust Property, and no creditor or interested party objected, it was appropriate under s 90-15 of Schedule 2 to the Corporations Act 2001 (Cth), s 63 and s 67 of the Trustee Act 1958 (Vic), and s 1318 of the Corporations Act 2001 (Cth) to authorise and confirm the Liquidator's dealing with Trust Property, apply the winding up priority provisions, relieve him from liability for honest and reasonable past dealings, and permit payment of remuneration and...

Court Disposition

Application allowed; orders sought by the Liquidator made.

Orders

  • ['Pursuant to section 90-15 of Schedule 2 - Insolvency Practice Schedule (Corporations) to the Corporations Act 2001 (Cth), the Liquidator is justified and acting reasonably in proceeding on the basis that the Company carried on business as trustee of The Johnson Unit Trust and that all assets and undertakings of...