In the matter of Glenvine Pty Limited (in liquidation) [2020] NSWSC 866

In the matter of Glenvine Pty Limited (in liquidation) [2020] NSWSC 866

The Court held that the liquidator should be appointed receiver and manager over the VBC Trust property and Darlinghurst Property with a power of sale because Glenvine Pty Ltd as former trustee retains a proprietary right of exoneration to satisfy outstanding liabilities, including the ANZ mortgage, which has priority over any asserted beneficial interest of Ms Van Beek; neither the Family Court orders nor the attempted transfer vested legal or equitable title in Ms Van Beek so as to defeat the trustee’s right or justify refusal or deferral of appointment; there is no alternative refinancing proposal and realised funds should be applied per the priorities recognised in the authorities.

Jurisdiction
Australia
Judgment Date
03 July 2020
Procedural Posture
Corporations – Equity – Interlocutory Application / Interlocutory Application for Appointment of Receiver and Ancillary Orders; Preliminary Findings as to Entitlement to Trust Assets Pending Final Hearing
Outcome
Application granted: Liquidator appointed receiver of VBC Trust property and Darlinghurst Property with power of sale.
Legal Topics
['appointment of Receiver and Manager' 'trustee’s Right of Indemnity/exoneration' 'effect of Family Court Orders on Third Party Trusts' 'transfer of Trust Assets' 'bare Trusts' 'property Settlement Under Family Law Act']
['corporations' 'equity' 'trusts' 'family Law'] ['appointment of Receiver and Manager' 'trustee’s Right of Indemnity/exoneration' 'effect of Family Court Orders on Third Party Trusts' 'transfer of Trust Assets' 'bare Trusts' 'property Settlement Under Family Law Act']

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Procedural Posture

Corporations – Equity – Interlocutory Application / Interlocutory Application for Appointment of Receiver and Ancillary Orders; Preliminary Findings as to Entitlement to Trust Assets Pending Final Hearing

Legal Issues

  1. 1 ['Whether the liquidator of a former trustee company should be appointed as receiver and manager over trust assets and trust property with a power of sale' 'Whether beneficiaries’ claims or unresolved equitable claims preclude or defer the appointment of a receiver/liquidator' 'Whether Family Court property settlement orders confer an immediate equitable or legal interest on a beneficiary where the trustee company was not a party to orders and transfer not completed' 'Whether execution and delivery of unregistrable transfer (where certificate of title retained by mortgagee) creates an equitable interest' 'Nature and priority of trustee’s right of indemnity and exoneration versus beneficiary claims']

Ratio Decidendi

The Court held that the liquidator should be appointed receiver and manager over the VBC Trust property and Darlinghurst Property with a power of sale because Glenvine Pty Ltd as former trustee retains a proprietary right of exoneration to satisfy outstanding liabilities, including the ANZ mortgage, which has priority over any asserted beneficial interest of Ms Van Beek; neither the Family Court orders nor the attempted transfer vested legal or equitable title in Ms Van Beek so as to defeat the trustee’s right or justify refusal or deferral of appointment; there is no alternative refinancing proposal and realised funds should be applied per the priorities recognised in the authorities.

Court Disposition

Application granted: Liquidator appointed receiver of VBC Trust property and Darlinghurst Property with power of sale.

Orders

  • ['Liquidator appointed as receiver and manager (without security) of the property, assets and undertakings of the VBC Trust and the Darlinghurst Property (433-437 Liverpool Street, Darlinghurst) nunc pro tunc, per s 67 Supreme Court Act 1970 (NSW)' 'Receiver not required to file guarantee under r 26.3 Uniform Civil...