In the matter of STA Travel Pty Ltd (in liquidation) [2022] NSWSC 1544

Supreme Court New South Wales

Medium Neutral Citation: In the matter of STA Travel Pty Ltd (in liquidation) [2022] NSWSC 1544 Hearing dates: 27 October 2022 Decision date: 11 November 2022 Jurisdiction: Equity Before: Peden J Decision: See paragraph [85] Catchwords: CORPORATIONS — Winding up — Liquidators — Where Australian entity of a global travel company wound up — Application for various orders in relation to external administration — Whether liquidators' remuneration concerning trust fund should be approved — Whether leave should be granted for liquidators to derive a profit — Whether creditor bank entitled to a banker's set off — Whether chargeback regime operates to preserve certain funds in the general winding up EQUITY — Trusts and trustees — Judicial advice — Where company holds refund sums on a fixed trust for customers — Whether trust created — Whether certainty of intention satisfied — Directions in relation to distribution of trust monies where beneficiaries are not identifiable within funds available — Whether trust monies can be distributed to the company instead — Where the appropriate direction is for trust monies to be paid to the NSW Trustee and Guardian Legislation Cited: Corporations Act 2001 (Cth) ss 544, 553C Insolvency Practice Schedule (Corporations) ss 60-20, 90-15 Trustee Act 1925 (NSW) ss 47, 63 Unclaimed Money Act 1995 (NSW) s 7(1)(a) Cases Cited: 13 Coromandel Place Pty Ltd v CL Custodians Pty Ltd (in liq) (1999) 30 ACSR 377 ACN 104 635 369 Pty Ltd (in liq) v Hamilton [2015] FCA 1219 Byrnes v Kendle (2011) 243 CLR 253 Carter Holt Harvey Woodproducts Australia v Commonwealth (2019) 268 CLR 524 Dean-Willcocks v Soluble Solution Hydroponics Pty Limited (1997) 42 NSWLR 209 Deputy Commissioner of Taxation v Starpicket Pty Ltd (No 2) [2013] FCA 699 Dering v The Earl of Winchelsea (1787) 29 ER 1184 Georges & McCluskey in their capacity as Liquidators of Radiata Plantations Ltd (In Liquidation) v Radiata Plantations Ltd (In Liquidation) [2009] NSWSC 994 HIH Claims Support Limited v Insurance Australia Limited (2011) 244 CLR 72 Lucantonio v Benscrape Pty Ltd (No 2) [2020] NSWSC 1114 and Re JPD Media & Design Pty Ltd (subject to deed of company arrangement) [2020] NSWSC 1311 Old Style Confections Pty Ltd v Microbyte Investments Pty Ltd (in liq) [1995] 2 VR 457 Re AAA Financial Intelligence Ltd (in liq) [2014] NSWSC 1004 Re BBY Holdings Pty Ltd (recs and mgrs apptd) (in liq) [2019] NSWSC 1272 Re BBY Ltd (recs and mgrs apptd) (in liq) [2021] NSWSC 1299 Re Direct Acceptance Corporation Ltd (Receiver Appointed) (in liq) (2019) 136 ACSR 245 Re Direct Acceptance Corporation Ltd (Receiver Appointed) (in liq) (2019) 136 ACSR 245 Re Fearndale Holdings Pty Ltd (in liq) (recs & mgrs apptd) [2020] NSWSC 901 Re Force Corp Pty Ltd (in liq) (2020) 149 ACSR 451 Re Gross, ex p. Kingston (1871) LR 6 Ch App 632 Re Idylic Solutions Pty Limited (2016) 115 ACSR 581 Re Magarey Farlam Lawyers Trust Accounts (No 3) (2007) 96 SASR 337 Re Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556 Re Paddington Town Hall Centre Ltd (In Liquidation) (1979) 41 FLR 239 Re PrimeSpace Property Investment Limited (in liquidation) [2018] NSWSC 919 Re Sakr Nominees Pty Ltd [2017] NSWSC 668 Re Sutherland; French Caledonia Travel Service Pty Ltd (In Liq) (2003) 59 NSWLR 361 Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr (2017) 93 NSWLR 459 The Trust Company (Re Services) Limited (in its capacity as responsible entity and trustee of the Australian Wholesale Property Fund) [2016] NSWSC 117 Travel Compensation Fund v Classic International Cruises Pty Ltd [2014] NSWSC 167 Union Bank of Australia Ltd v Murray-Aynsley [1898] AC 693 Category: Principal judgment Parties: Jason Mark Tracy and Timothy Bryce Norman in their capacity as joint and several liquidators of STA Travel Pty Ltd (in liq) (First Plaintiff) STA Travel Pty Ltd (in liq) (Second Plaintiff) Representation: Counsel: D Krochmalik (Plaintiffs) No appearance (Defendant)