Jennifer Helen Papadam v Smidam Pty Limited [2022] NSWSC 629

Supreme Court New South Wales

Medium Neutral Citation: Jennifer Helen Papadam v Smidam Pty Limited [2022] NSWSC 629 Hearing dates: 28 March 2022 Date of orders: 18 May 2022 Decision date: 18 May 2022 Jurisdiction: Equity - Corporations List Before: Williams J Decision: See paragraph [62] Catchwords: RECEIVERS AND MANAGERS – court-appointed receiver – remuneration – no question of principle CORPORATIONS – where receiver appointed to assets and undertaking of corporate trustee of self-managed superannuation fund – where directors of trustee unable to work together – where directors are also the members of the fund – where directors and members consent to receiver's application under Corporations Act 2001 (Cth) ss 420(2)(u) and 461(1)(k) to wind up the trustee with a view to the liquidator then causing the trustee to exercise its powers under the trust deed to wind up the fund – where company's powers under trust deed (including power to wind up trust) may have ceased upon appointment of receiver due to ipso facto clause in trust deed – where winding up would result in the trustee being a disqualified person under Superannuation Industry (Supervision) Act 1993 (Cth), s 120(2)(e) and any step taken by trustee company in liquidation to wind up the fund (assuming it had power to do so) would be an offence under s 126K of that Act – winding up order refused Legislation Cited: Corporations Act 2001 (Cth), ss 420, 461 Superannuation Industry (Supervision) Act 1993 (Cth), ss 35B, 35C, 35D, 120, 126K Supreme Court Act 1970 (NSW), s 67 Uniform Civil Procedure Rules 2005 (NSW), r 26.4 Cases Cited: Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20 Deputy Commissioner of Taxation v The Mai Family Pty Ltd (in liq) (2019) 136 ACSR 638; [2019] FCA 865 Re Gondon Five Pty Ltd and Cui Family Asset Management Pty Ltd [2019] NSWSC 469 Re Say Enterprises Pty Ltd [2018] NSWSC 396 Re Stansfield DIY Wealth Pty Ltd (in liq) (2014) 103 ACSR 401; [2014] NSWSC 1484 Category: Procedural rulings Parties: Daniel Frisken in his capacity as Receiver and Manager of Smidam Pty Ltd (Applicant) Jennifer Helen Papadam (Plaintiff) Smidam Pty Limited (First Defendant) Anthony David Smith (Third Defendant) Representation: Counsel: Mr M Connor (Applicant) Mr J Simpkins (Plaintiff) Mr A Smith (self-represented) (Third Defendant)