Emilco [2001] NSWSC 1035

Reported Decision : (2002) 20 ACLC 388

New South Wales Supreme Court

CITATION : Emilco [2001] NSWSC 1035 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1869/91 HEARING DATE(S) : 07/11/01 JUDGMENT DATE : 19 November 2001

Emilco Pty Limited (In Liquidation) - Applicant PARTIES : Emile Jaa Jaa - Respondent Wahib and Nehia Jaa Jaa - Creditors Mr T. Dixon - Trustee for Emile Jaa Jaa JUDGMENT OF : Barrett J

Mr J.B. Whittle SC/Mr H.F. Woods - Applicant COUNSEL : Mr M.K. Rollinson - Defendant Mr B.A.J. Guest - Creditors Mr Winter - Solicitor for Mr T. Dixon Clinch Neville Long Lawyers - Applicant SOLICITORS : Carters Law Firm - Respondent Egisto Solicitors - Creditors CATCHWORDS : EQUITY - trusts and trustees - creation of trust - whether agreement by assignee of chose in action from company in liquidation to remit net proceeds of recovery to liquidator for benefit of creditors causes chose to be held in trust - significance of assignee's promise not to assign chose without consent - significance of distinction between company and liquidator - significance of statement of purpose - BANKRUPTCY - property of bankrupt - whether chose in action held in trust by trustee entitled to recoup expenses out of proceeds of recovery is excluded from property vesting in official trustee because held in trust for another person - CORPORATIONS - whether creditor taking assignment of chose in action from company in liquidation subject to trust to remit net proceeds of recovery to liquidator for benefit of creditors thereby protects or preserves property of company - application by such creditor for preferred position in winding up cannot be addressed until relativity of creditors' claims established - possible significance of break in creditor status between time of protecting or preserving and time of application - BANKRUPTCY - upon bankruptcy of creditor to whom debt owed by company in liquidation the debt vests in official trustee - creditor status as against company thereby lost by bankrupt - subsequent discharge from bankruptcy does not restore debt or creditor status - whether official trustee might assign debt to discharged bankrupt Trustee Act 1925 LEGISLATION CITED : Bankruptcy Act 1966 (Cth) Corporations Act 2001 (Cth) Hall v Busst (1960) 104 CLR 206 Official Receiver in Bankruptcy v Todd (1986) 14 FCR 177 Re Matheson; Ex parte Worrell (1994) 49 FCR 454 Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 71 FCR 550 Willoughby v Official Trustee in Bankruptcy (2000) 102 FCR 261 Re Kyra Nominees Pty Ltd (1987) 11 ACLR 767 Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294 State Bank of New South Wales v Brown (2001) 38 ACSR 715 Re Jones (1953) 16 ABC 169 Re Manson; Ex parte Official Assignee (1897) 18 LR (NSW) (B & P) 38 CASES CITED : Pegler v Dale [1975] 1 NSWLR 265 Macdonald v Reuthlinger [1976] 1 NSWLR 88 Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178 Nominal Defendant v Manning (2000) 50 NSWLR 139 Jamoon Pty Ltd v Bow [1997] 2 Qd R 62 Bell Group v Westpac Banking Corporation (1996) 18 WAR 21 Stott v Milne (1884) 25 ChD 710 Re Beddoe; Downs v Cottam [1893] 1 Ch 547 In re a Solicitor [1952] Ch 328 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Haq v Singh [2001] 1 WLR 1593 Agnew v Commissioner of Inland Revenue [2001] 3 WLR 454 DECISION : Refer to paragraphs 41 and 42