Bolwell (Liquidator), in the matter of Mandalay Road Holdings Pty Ltd (in liq) v Goldsmith-Medd (Trustee) [2022] FCA 1300

Federal Court of Australia

Bolwell (Liquidator), in the matter of Mandalay Road Holdings Pty Ltd (in liq) v Goldsmith-Medd (Trustee) [2022] FCA 1300 File number(s): QUD 276 of 2020

Judgment of: O'SULLIVAN J

Date of judgment: 2 November 2022

Catchwords: CORPORATIONS LAW – trusts & trustees – practice and procedure – interlocutory application by the Liquidator of a company and Receiver of a trust of which the Company was trustee seeking directions pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) as contained in Schedule 2 of the Corporations Act 2001 (Cth) – whether the Trust was validly constituted – where the Company was named in the Trust Deed as trustee but not incorporated at the time the Trust Deed was executed – whether the sole director of the Company once incorporated became the trustee of the Trust upon execution of the Trust Deed – whether upon its subsequent incorporation the Company became the trustee of the Trust – whether the Company ratified the pre-incorporation actions of the person who became its sole director upon incorporation – whether the Company acted solely in its capacity as trustee of the Trust – whether the Company property was, prior to its sale by the Receiver of the Trust, properly characterised as property held by the Company in its capacity as trustee of the Trust – whether the realisation and distribution of the proceeds of the sale of the property are each governed by Parts 5.4B and 5.6 of the Corporations Act 2001 (Cth) – where the plaintiffs are entitled to the directions sought.

Legislation: Corporations Act 2001 (Cth), Schedule 2, Insolvency Practice Schedule (Corporations), s 90-15, 90-20 & Parts 5.4B and 5.6

Cases cited: Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 Jones v Matrix Partners Pty Ltd; Re-Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310 Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6; (2015) 255 CLR 62 Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 249 CLR 493 Raftland Pty Ltd (as trustee of the Raftland Trust) v Commissioner of Taxation [2006] FCA 109; (2006) 227 ALR 598 Re LEWIS (as liquidators of CONCRETE SUPPLY PTY LTD (in liq) (ACN 007 848 580) (2020) 145 ACSR 459 Re McGowan & Valentini Trusts [2021] VSC 154