FEDERAL COURT OF AUSTRALIA Palombi, in the matter of Salgiopal Nominees Pty Ltd (Deregistered) ACN 066 793 655 [2012] FCA 698 Citation: Palombi, in the matter of Salgiopal Nominees Pty Ltd (Deregistered) ACN 066 793 655 [2012] FCA 698 Parties: IN THE MATTER OF SALGIOPAL NOMINEES PTY LTD (DEREGISTERED) ACN 066 793 655; ALFREDO PALOMBI File number: SAD 115 of 2012 Judge: LANDER J Date of judgment: 19 June 2012 Catchwords: CORPORATIONS – application under s 568F of Corporations Act 2001 (Cth) – application for disclaimed property to vest without any conveyance, transfer or assignment – company appointed trustee and tenant in common of property in capacity as trustee – plaintiff appointed trustee in lieu of company – company wound up – liquidator appointed – transfer of property to plaintiff never effected – liquidator disclaimed property – application unopposed Legislation: Corporations Act 2001 (Cth) ss 568F, 601AB Date of hearing: 19 June 2012 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Plaintiff: Mr J Neate Solicitor for the Plaintiff: Lynch Meyer IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 115 of 2012 IN THE MATTER OF SALGIOPAL NOMINEES PTY LTD (DEREGISTERED) ACN 066 793 655 BETWEEN: ALFREDO PALOMBI Plaintiff JUDGE: LANDER J DATE OF ORDER: 19 JUNE 2012 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The disclaimed property, being one of two equal undivided shares in Certificate of Title Volume 9947 Folio 308, otherwise described as Lot 1, Benetook Avenue, Mildura, Victoria, vest in Alfredo Palombi in his capacity as trustee of the Palombi Family Trust immediately and for the purpose of the order, without any conveyance, transfer or assignment. 2. A sealed copy of this order be registered at the Land Titles Office in Victoria. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 115 of 2012 IN THE MATTER OF SALGIOPAL NOMINEES PTY LTD (DEREGISTERED) ACN 066 793 655 BETWEEN: ALFREDO PALOMBI Plaintiff JUDGE: LANDER J DATE: 19 JUNE 2012 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application under s 568F of the Corporations Act 2001 (Cth) (the Act) for an order that certain disclaimed property vest in the plaintiff immediately without any conveyance, transfer or assignment. 2 The circumstances giving rise to the application are these. On 16 November 1994, Salgiopal Nominees Pty Ltd ACN 066793655 (the company) was appointed as the trustee of the Palombi Family Trust (the trust) under a deed of trust executed on the same day. Under the same deed, the plaintiff was appointed appointor. The company, in its capacity as trustee of the trust, became the registered proprietor as tenant in common of one of two equal undivided shares in certain property described as Lot 1 of Title Plan 143188R, Certificate of Title Volume 9947 Folio 308 situated at Lot 1, Benetook Avenue, Mildura, with RGJ Mammone Nominees Pty Ltd (the property). 3 On 31 December 2000, the company ceased to be the trustee of the trust and the plaintiff was appointed in lieu of the company as the trustee of the trust pursuant to clause 7 of the deed of trust. The income and capital beneficiaries of the trust are the plaintiff, his children and remoter issue, and any spouse, widow, widower, former spouse of a child or remoter issue, or any parent, brother, niece or nephew of the plaintiff, and lastly, any charitable or religious organisation, educational institution, or college or sporting, religious or service club or organisation. The default income and capital beneficiaries of the trust are the plaintiff and his children or remoter issue. 4 On 19 January 2001, the company made an application for voluntary deregistration, and as a consequence was deregistered on 1 May 2001. At the time the company was deregistered, the company's accountant overlooked the need to transfer the property from the company to the plaintiff as the new trustee of the trust. Some time before 15 November 2002, an application was made by a creditor of the company to reinstate the company, and the company was reinstated on that day. On the same day the Supreme Court of South Australia made an order winding up the company in insolvency and Mr Mark Hall was appointed as liquidator of the company. 5 On or about 9 February 2003, the plaintiff became aware that a transfer of the company's interest in the property had not occurred. On the following day, 10 February 2003, the plaintiff lodged and registered a caveat, AB867164B, on the Certificate of Title in respect of the plaintiff's interest as trustee of the trust. On 21 May 2007, the liquidator of the company warned the caveat. On 28 June 2007, the plaintiff commenced proceedings in the Supreme Court of Victoria in action number 6931 of 2007 seeking orders for the transfer of the property to the plaintiff as trustee of the trust. 6 On 5 March 2008, a settlement was reached with the liquidator of the company whereby the property was to be transferred to the plaintiff in consideration of the plaintiff paying the liquidator 50% of his share of the net proceeds of the sale of the property, plus $3000. The terms of settlement envisaged that the co-tenant in common would agree to the sale of the property; the property would be sold; and, as a consequence, the plaintiff would pay the liquidator the amount to which I have referred. As it happened, the terms of settlement were never effected for reasons which I am unaware. 7 On 21 July 2010, the liquidator, acting pursuant to s 568 of the Act, disclaimed the property of the company as the notice of disclaimer advises: "50% interest in a vacant parcel of land situated at Lot 1 Benetook Avenue Mildura, Victoria." 8 The reason for the disclaimer was that it was reasonable to expect that the costs, charges and expenses that would be incurred in realising the property would exceed the proceeds of realising that property. On 23 February 2011, the liquidator resigned as liquidator of the company. On 1 May 2011, the company was again deregistered, this time under s 601AB of the Act. The plaintiff's solicitors subsequently wrote to the former liquidator of the company regarding the transfer of the property from the company to the plaintiff as trustee of the trust. 9 In a letter dated 1 May 2012, the former liquidator wrote to the plaintiff's solicitors saying that he does not oppose the plaintiff's application made pursuant to s 568F of the Act. Section 568F provides the Court with power to order that disclaimed property be vested in or be delivered to a person entitled to the property. It would seem on the evidence that is before me that the plaintiff is entitled to the property as a successor to the company as trustee of the trust. 10 In those circumstances, I am prepared to make the order sought in the application. I make the following orders: (1) That the disclaimed property, being one of two equal undivided shares in Certificate of Title Volume 9947 Folio 308, otherwise described as Lot 1, Benetook Avenue, Mildura, Victoria, vest in Alfredo Palombi in his capacity as trustee of the Palombi Family Trust immediately and for the purpose of the order, without any conveyance, transfer or assignment. (2) That this order be registered at the Lands Title Office in Victoria. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 2 July 2012