In the matter of Jacks Corner Pty Ltd (in liquidation) [2023] NSWSC 1340

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Jacks Corner Pty Ltd (in liquidation) [2023] NSWSC 1340 Hearing dates: 30-31 October and 3 November 2023 Date of orders: 8 November 2023 Decision date: 08 November 2023 Jurisdiction: Equity - Commercial List Before: Williams J Decision: See orders at [116] below. Catchwords: CORPORATIONS – Liquidators of former trustee of unit trust apply to be appointed as receivers and managers of trust assets by way of enforcement of equitable charge security right to be indemnified out of trust assets – Current trustee opposes appointment on grounds that, inter alia, the costs of winding up the former trustee were occasioned by a breach of trust and the liquidators were therefore not entitled to have their remuneration paid out of trust assets – receivers and managers appointed. CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment – Where applications made late on first day and early on second day of two-day hearing – Where grant of leave would be inconsistent with overriding purpose and dictates of justice and just resolution of proceedings – Leave refused – No question of principle. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58, 64, 64(2) Corporations Act 2001 (Cth), ss 420, 420(3), 436A, 439C, 471B, 500, schedule 2 ss 5-30, 90-15, 90-20, 90-20(1)(a)-(e), 90-20(2)(a) Evidence Act 1995 (NSW), ss 136, 144 Supreme Court Act 1970 (NSW), s 67 Trustee Act 1925 (NSW), s 59(4) Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14; [2009] HCA 27 Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; (2019) 93 ALJR 807; (2019) 368 ALR 390; (2019) 17 ABC(NS) 1; [2019] HCA 20 Gatsios Holdings v Kritharas Holdings (in liq) [2002] ATPR 41-864; [2002] NSWCA 29 In Re Suco Gold Pty Ltd (in liquidation) (1983) 33 SASR 99; (1983) 7 ACLR 873; (1983) 1 ACLC 895 John Alexander's Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1; (2010) 84 ALJR 446; (2010) 266 ALR 462; (2010) 2 ASTLR 553; (2010) 4 BFRA 701; [2010] HCA 19 Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) (2018) 260 FCR 310; (2018) 354 ALR 436; (2018) 124 ACSR 568; (2018) 36 ACLC 18-017; (2018) 70 AILR 102-937; [2018] FCAFC 40 King Investment Solutions v Hussain (2005) 1 BFRA 577; [2005] NSWSC 1076 Nolan v Collie (2003) 7 VR 287; [2003] VSCA 39 Re Independent Contractor Services (Aust) Pty Limited (in liq) (No 2) (2016) 305 FLR 222; (2016) 34 ACLC 16-004; (2016) 11 BFRA 355; [2016] NSWSC 106 Re Indopal Pty Ltd (1987) 12 ACLR 54; (1987) 5 ACLC 278 Re Staff Benefits Pty Ltd [1979] 1 NSWLR 207; (1979) 4 ACLR 54; [1979] CLC 40-531 Re Stansfield DIY Wealth Pty Limited (in liq) (2014) 291 FLR 17; (2014) 103 ACSR 401; (2014) 32 ACLC 14-065; (2014) 9 BFRA 663; [2014] NSWSC 1484 Ross v Lane Cove Council (2014) 86 NSWLR 34; (2014) 199 LGERA 298; [2014] NSWCA 50 Texts Cited: JD Heydon, MJ Leeming, and PG Turner, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (LexisNexis, 5th ed, 2015) Category: Principal judgment Parties: Originating Process: CR Operations Pty Ltd ACN 656 001 008 (Plaintiff) Jacks Corner Pty Ltd (in liquidation) ACN 645 673 981 (First Defendant) John Vouris in his capacity as liquidator of the first defendant (Second Defendant)