Pleash (Liquidator) v Tucker [2018] FCAFC 144

FEDERAL COURT OF AUSTRALIA

Pleash (Liquidator) v Tucker [2018] FCAFC 144 Appeal from: Pleash, in the matter of Equititrust Limited (In Liquidation) (Receivers and Managers Appointed) (No 3) [2017] FCA 1074

File number: QUD 2 of 2018

Judges: MCKERRACHER, FARRELL AND BANKS-SMITH JJ

Date of judgment: 29 August 2018

Catchwords: CORPORATIONS - appeal from refusal to order production of documents under s 597(9) of the Corporations Act 2001 (Cth) - liquidators' examination - where liquidators sought to assess means of examinee to pay prospective debt - where examinee is beneficiary or object of discretionary trusts and director of corporate trustees - whether control exception applied where beneficiary controls the distribution of trust assets - whether income and capital of trusts and third parties otherwise relevant to examinable affairs - whether liquidators established basis for asserting potential to trace funds into trusts - relevance of Pt VI Div 4A of the Bankruptcy Act 1966 (Cth) to prospect of payment

Legislation: Bankruptcy Act 1966 (Cth) Part VI Division 4A Corporations Act 2001 (Cth) ss 596A, 597(9), 1323 Federal Court of Australia Act 1976 (Cth) s 27 Federal Court Rules 2011 (Cth) r 20.31

Cases cited: Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814; (2006) 153 FCR 509 Boys v Quigley [2002] WASCA 99; (2002) 26 WAR 454 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 Dwyer v Ross [1992] FCA 20; (1992) 34 FCR 463 Fordyce v Ryan [2016] QSC 307; (2017) 2 Qd R 240 Freeman v National Australia Bank [2003] FCAFC 200 Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (1993) 61 SASR 557; (1993) 116 FLR 479 Grosvenor Hill (Queensland) Pty Ltd v Barber [1994] FCA 59; (1994) 48 FCR 301 House v The King [1936] HCA 40; 55 CLR 499 Inland Revenue Commissioners v Trustees of Sir John Aird's Settlement [1982] 2 All ER 929 Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366 Pleash, in the matter of Equititrust Limited (In liquidation) (Receivers and Managers Appointed) [2017] FCA 16 Pleash, in the matter of Equititrust Limited (In liquidation) (Receivers and Managers Appointed) (No 2) [2017] FCA 758; (2017) 122 ACSR 299 Pleash, in the matter of Equititrust Limited (In liquidation) (Receivers and Managers Appointed) (No 3) [2017] FCA 1074 Rafferty v Time 2000 West Pty Ltd (No 9) [2011] FCA 1483 Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45; (2017) 249 FCR 483 Wainter Pty Ltd, in the matter of New Tel Limited (in liq) [2005] FCAFC 114; (2005) 221 ALR 331; (2005) 145 FCR 176