Sydney Subdivision Pty Ltd (in liq) v Chow (No 3) [2024] FCA 644

Federal Court of Australia

Sydney Subdivision Pty Ltd (in liq) v Chow (No 3) [2024] FCA 644 File number: NSD 309 of 2020

Judgment of: COLVIN J

Date of judgment: 17 June 2024

Catchwords: TRUSTS AND TRUSTEES - where company in liquidation former trustee of trust - where company and liquidator pursuing recovery of unpaid loan which forms part of trust property - where new trustee appointed - consideration of rights of exoneration and interest of former trustee in trust property - consideration of claims that may be made to recover loans as trust property PRACTICE AND PROCEDURE - application to amend originating application and statement of claim - where there is dispute as to authority to pursue relief against respondents in respect of trust property - where proposed amendments include adding relief appointing liquidator as a receiver - where proposed amendments introduce new claim alleging respondents breached fiduciary and directors' duties by their failure to repay loans - whether new trustee is a necessary party to the application - whether appropriate to seek appointment of liquidator as a receiver in the form of final relief - whether leave should be given to introduce new claim - new trustee joined as party - application otherwise dismissed - leave given to applicants to make a further interlocutory application to appoint second applicant as a receiver PRACTICE AND PROCEDURE - application for summary judgment on the basis that action is statute barred - where no express terms agreed as to repayment of loan - whether claim is clearly out of time - whether loan became repayable from time of advance or from the time of demand for payment by the applicants - whether no reasonable prospect of successfully prosecuting claim in relation to directors' loans - held arguable basis that claim is within time - application dismissed