In the matter of Elegant Swan Pty Ltd (in liquidation) (controllers appointed) [2022] NSWSC 1451

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Elegant Swan Pty Ltd (in liquidation) (controllers appointed) [2022] NSWSC 1451 Hearing dates: 21 October 2022 Decision date: 26 October 2022 Jurisdiction: Equity Before: Meek J Decision: Orders made for the payment of monies in Court. Direction and advice given to liquidator. Liquidator's costs of the application to be costs in the liquidation. Catchwords: MORTGAGES — Payment in Court — Applications for payment out by mortgagee and controller of company and liquidator of company.

PROCEDURE — Principles and mechanics as to payment into Court — Alternatives for mortgagee payment into Court in stakeholder's interpleader (Part 43 Uniform Civil Procedure Rules 2005 (NSW)) and payment into Court under Part 4 Trustee Act 1925 (NSW) — Part 55 Uniform Civil Procedure Rules 2005 (NSW) explained — Principles as to payment out explained — Distinction as to treatment of and determinations regarding trust monies paid in and non-trust monies paid in — Basis of exoneration of payee TRUSTS — Indicia of beneficial interests, declaration of trusts and sham trusts discussed EVIDENCE — proof of intention LIQUIDATORS — Directions in relation to questions arising in respect of the external administration of the company: s 90-15(3)(a) Insolvency Practice Schedule (Corporations) — Certain conflicting materials arising from liquidator's investigations regarding whether company owner in own right of property or as trustee — Advice given Legislation Cited: Civil Procedure Act 2005 (NSW) Commercial Arbitration Act 1984 (NSW) Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Real Property Act 1900 (NSW) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bank of New South Wales v Adams [1982] 2 NSWLR 659 Commonwealth Bank of Australia v Estate of late Mahmoud Slieman [2010] NSWSC 661 Cox v Smail [1912] VLR 274 Deputy Commissioner of Taxation v Cutili Invest 88 Pty Ltd [2020] FCA 47 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Fletcher v Federal Commissioner of Taxation (1991) 173 CLR 1; [1991] HCA 42 Forster v Forster [1907] VLR 159 Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264; [1991] HCA 51 Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254; [1928] HCA 36 Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72 In the matter of Courtenay House Capital Trading Group Pty Ltd (in liq) [2020] NSWSC 780; (2020) 147 ACSR 1 JKB Holdings Pty Limited v de la Vega [2013] NSWSC 501 Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204 Marac Finance Ltd v Virtue [1981] 1 NZLR 586 Re Lamshed [1970] SASR 224 Residential Housing Corporation v Esber (2011) 80 NSWLR 69; [2011] NSWCA 25 Saunders v Vautier (1841) Cr & Ph 240; 49 ER 282 Strang v Strang [2009] NSWSC 760 Texts Cited: Halsbury's Laws of Australia (online) J D Heydon and M J Leeming, Jacobs' Law of Trusts (8th ed, 2016, LexisNexis) Category: Procedural rulings Parties: National Australia Bank Limited (First Plaintiff / Applicant on Notice of Motion filed 13 September 2022) Sam Andrew Marsden & David Ian Mansfield as joint & several controllers of Elegant Swan Pty Limited ACN 611 273 726 (Second Plaintiff / Applicant on Notice of Motion filed 13 September 2022) Ian Malcolm Niccol in his Capacity as liquidator of Elegant Swan Pty Ltd (in liquidation)(Controllers Appointed) (Applicant on Notice of Motion filed 16 September 2022) Representation: Counsel: F Tao (Plaintiffs / Applicants on Notice of Motion filed 13 September 2022) C L W Street (Applicant on Notice of Motion filed 16 September 2022) Solicitors: Corrs Chambers Westgarth (Plaintiffs / Applicants on Notice of Motion filed 13 September 2022) Colin Biggers & Paisley (Applicant on Notice of Motion filed 16 September 2022) File Number(s): 2022/188112