In the matter of Montpac Pty Ltd (in liquidation) and Global Network Link Pty Ltd (in liquidation) [2020] NSWSC 1237

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Montpac Pty Ltd (in liquidation) and Global Network Link Pty Ltd (in liquidation) [2020] NSWSC 1237 Hearing dates: 3 September 2020 Date of orders: 11 September 2020 Decision date: 11 September 2020 Jurisdiction: Equity - Corporations List Before: Black J Decision: Orders and directions made. Catchwords: CORPORATIONS – Winding up – Orders and directions in respect of past and future conduct of liquidations – Companies in liquidation did not carry on activities other than as trustees – Companies disqualified as trustees due to insolvency – Directions that all company assets and liabilities are trust assets and liabilities. CORPORATIONS – Winding up – Orders and directions in respect of past and future conduct of liquidations – Liquidators exceeded powers as bare trustee in selling trust property – Whether liquidators acted honestly and reasonably and should be excused for past breach of trust – Whether to grant direction permitting liquidators as bare trustees to sell assets – Liquidators permitted to sell trust assets in future where no present likelihood of new trustee being appointed – Priority of distribution of trust assets – Whether trust assets in trustee's liquidation to be distributed in accordance with priorities set out in s 556 of Corporations Act 2001 (Cth). CORPORATIONS – Winding up – Liquidators' costs and remuneration – Where all the companies' assets were trust assets – Liquidators' reasonable costs and remuneration may be met through trust assets . Legislation Cited: - Corporations Act 2001 (Cth), ss 479(3), 555-561 1318(2) - Insolvency Practice Schedule (Corporations), s 90-15 - Trustee Act 1925 (NSW), ss 63, 81, 85 Cases Cited: - Amirbeaggi, Re Simpkiss Pty Ltd (in liq) [2018] FCA 2121 - Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 - Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 368 ALR 390; [2019] HCA 20 - Commonwealth v Byrnes and Hewitt [2018] VSCA 41 - Equititrust Ltd (in liq) (rec apptd) (recs and mgrs apptd) v Equititrust Ltd (in liq) (rec apptd) (recs and mgrs apptd) (No 4) [2017] FCA 1133 - Jones (liquidator) v Matrix Partners Pty Ltd, Re Killarnee Civil and Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40 - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 - Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 - Mutton, Re Balsub Pty Ltd (In liq) [2020] FCA 741 - Parker, Re Dengi Pty Ltd (in liq) [2018] FCA 444 - Re Australian Pipeline Ltd (2006) 60 ACSR 625; [2006] NSWSC 1316 - Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844 - Re Go Energy Group Ltd [2019] NSWSC 558 - Re Plutus Payroll Australia Pty Ltd (in liq) [2019] NSWSC 1171 - Re RCR Tomlinson Ltd (admins apptd) [2020] NSWSC 735 - Re Suncoast Restoration Pty Ltd (in liq) (2013) 211 FCR 203; [2013] FCA 355 - Walley; Re Poles & Underground Pty Ltd (admins apptd) [2017] FCA 486 - Warner (liquidator), Re Sakr Bros Pty Ltd (in liq) [2019] FCA 547 - Woodgate, in the matter of Bell Hire Services Pty Ltd (in liq) [2016] FCA 1583 Category: Principal judgment Parties: Terry Grant van der Velde in his capacity as joint and several liquidator of Montpac Pty Ltd (in liquidation) and of Global Network Link Pty Ltd (in liquidation) (First Plaintiff) Jason Lloyd Porter in his capacity as joint and several liquidator of Montpac Pty Ltd (in liquidation) and of Global Network Link Pty Ltd (in liquidation) (Second Plaintiff) Montpac Pty Ltd (in liquidation) (Third Plaintiff) Global Network Link Pty Ltd (in liquidation) (Fourth Plaintiff) Representation: Counsel: D Robertson (Plaintiffs)