Treecorp Australia Ltd (in liquidation) v Dwyer [2009] FCA 278

Treecorp Australia Ltd (in liquidation) v Dwyer [2009] FCA 278

The funds deposited in the TL Charge Account were not scheme property within s 9 of the Corporations Act 2001 (Cth), but they remained subject to a registered first ranking fixed charge granted by TL in favour of TAL as responsible entity to secure TL's maintenance obligations. The rights under that charge continued and were capable of passing to a successor responsible entity under s 601FT. Accordingly, the funds were not property of TL or TAL available to be applied in satisfaction of either company's liabilities under the Act.

Jurisdiction
Australia
Judgment Date
30 March 2009
Procedural Posture
Application Under S 511(1) of the Corporations Act 2001 (cth) by the Liquidator of Treecorp Australia Ltd (in Liquidation) and Treecorp Limited (in Liquidation) / Determination of a Question Concerning Whether Funds in National Australia Bank Accounts Were Company Property to Be Applied in Satisfaction of Liabilities
Outcome
The question was answered no.
Legal Topics
['scheme Property' 'responsible Entity' 'fixed Charge' 'liquidation' 'successor Responsible Entity']
['corporations Law' 'managed Investment Schemes' 'insolvency'] ['scheme Property' 'responsible Entity' 'fixed Charge' 'liquidation' 'successor Responsible Entity']

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Procedural Posture

Application Under S 511(1) of the Corporations Act 2001 (cth) by the Liquidator of Treecorp Australia Ltd (in Liquidation) and Treecorp Limited (in Liquidation) / Determination of a Question Concerning Whether Funds in National Australia Bank Accounts Were Company Property to Be Applied in Satisfaction of Liabilities

Legal Issues

  1. 1 ["Whether the sum of $750,024.39 plus interest in specified National Australia Bank accounts was part of the property of Treecorp Australia Ltd or Treecorp Limited to be applied in satisfaction of that company's liabilities under the Corporations Act 2001 (Cth)." "Whether funds in the TL Charge Account or the chargee's rights over them were scheme property within s 9 of the Corporations Act 2001 (Cth)." 'Whether the funds remained subject to a fixed charge in favour of the responsible entity, its successors and assigns.']

Ratio Decidendi

The funds deposited in the TL Charge Account were not scheme property within s 9 of the Corporations Act 2001 (Cth), but they remained subject to a registered first ranking fixed charge granted by TL in favour of TAL as responsible entity to secure TL's maintenance obligations. The rights under that charge continued and were capable of passing to a successor responsible entity under s 601FT. Accordingly, the funds were not property of TL or TAL available to be applied in satisfaction of either company's liabilities under the Act.

Court Disposition

The question was answered no.

Orders

  • ["The answer to the question whether the sum of $750,024.39 in the specified National Australia Bank accounts in the names of TAL and TL plus interest was part of the property of one or other of TL or TAL to be applied in satisfaction of that company's liabilities in accordance with the Corporations Act 2001 (Cth)...