In the matter of MINMXT Holdings Pty Ltd (In liquidation) (No 2) [2017] NSWSC 231

In the matter of MINMXT Holdings Pty Ltd (In liquidation) (No 2) [2017] NSWSC 231

A liquidator who institutes proceedings against secured creditors and is unsuccessful may be personally liable for adverse costs orders; there is no basis for limiting liability to available trust assets, and the liquidator litigates at his own risk.

Parties
Plaintiff/applicant: Adam Bernard Preiner in his Capacity as Official Liquidator of MINMXT Holdings Pty Ltd (In Liquidation) (ACN 135 131 627); Plaintiff/applicant: MINMXT Holdings Pty Ltd (In Liquidation) (ACN 135 131 627); Respondent: Nichole Paula Schlebusch; Respondent: Morney Schlebusch; Respondent: Prospa Advance Pty Ltd ACN 154 775 667; Respondent: Hoot Townsville Pty Ltd (In Liquidation) ACN 162 596 152; Respondent: Hoot Townsville Pty Ltd (In Liquidation) ACN 162 597 864; Respondent: Andrew Kent Osborne; Respondent: Prime Capital Securities Pty Ltd ACN 168 662 173
Jurisdiction
Australia
Judgment Date
14 March 2017
Procedural Posture
Equity Corporations List / Settlement of Final Orders Following Principal Judgment
Outcome
Costs order against applicant personally; quantification and priority of remuneration and expenses; directions for administration of trust asset claims and payment into court.
Legal Topics
Remuneration and Expenses of Liquidator, Priority of Trust Asset Claims, Liquidator’s Liability for Costs
Corporations Trusts Remuneration and Expenses of Liquidator Priority of Trust Asset Claims Liquidator’s Liability for Costs

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Parties

Adam Bernard Preiner in his Capacity as Official Liquidator of MINMXT Holdings Pty Ltd (In Liquidation) (ACN 135 131 627)

Plaintiff/applicant

MINMXT Holdings Pty Ltd (In Liquidation) (ACN 135 131 627)

Plaintiff/applicant

Nichole Paula Schlebusch

Respondent

Morney Schlebusch

Respondent

Prospa Advance Pty Ltd ACN 154 775 667

Respondent

Hoot Townsville Pty Ltd (In Liquidation) ACN 162 596 152

Respondent

Hoot Townsville Pty Ltd (In Liquidation) ACN 162 597 864

Respondent

Andrew Kent Osborne

Respondent

Prime Capital Securities Pty Ltd ACN 168 662 173

Respondent

Procedural Posture

Equity Corporations List / Settlement of Final Orders Following Principal Judgment

Legal Issues

  1. 1 Whether a liquidator's liability for costs of unsuccessful resistance to secured creditors' claims for priority should be limited to trust assets
  2. 2 Priority of liquidator’s right to remuneration and expenses as against secured creditors

Ratio Decidendi

A liquidator who institutes proceedings against secured creditors and is unsuccessful may be personally liable for adverse costs orders; there is no basis for limiting liability to available trust assets, and the liquidator litigates at his own risk.

Court Disposition

Costs order against applicant personally; quantification and priority of remuneration and expenses; directions for administration of trust asset claims and payment into court.

Orders

  • Adam Bernard Preiner, as liquidator and receiver, to pay costs of third, fourth, fifth, and sixth respondents incidental to interlocutory process.
  • Remuneration and recoverable expenses of Adam Bernard Preiner determined to be $138,621.48 inclusive of GST plus his costs of interlocutory process.