Supreme Court New South Wales Medium Neutral Citation: In the matter of Argyle Gravel & Concrete Pty Limited [2013] NSWSC 374 Hearing dates: Monday, 18 March 2013 Decision date: 18 March 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Order that the property described in the schedule vest in the plaintiff Argyle Gravel and Concrete Pty Ltd as trustee for the Figtree Reserve Superannuation Fund Catchwords: CORPORATIONS - external administration - winding up - disclaimer of assets by liquidator - whether disclaimer should be set aside - whether the court should make orders vesting property in a person entitled to the property Legislation Cited: (Cth) Corporations Act 2001, s 568, 568A, s 568B, s 568E, s 568F(1)(c) Category: Principal judgment Parties: Argyle Gravel & Concrete Pty Ltd (plaintiff) John Cunningham as liquidator of Millerview Constructions Pty Limited (liquidator) Representation: Counsel: J Miller (In Person - plaintiff) P James (liquidator) Solicitors: James Legal Pty Ltd (liquidator) File Number(s): 2013/ 67369 Judgment (Ex Tempore) 1HIS HONOUR: The Figtree Reserve Superannuation Fund was established by trust deed made on 10 May 1999 between Millerview Constructions Pty Ltd as employer and Millerview Constructions Pty Ltd as trustee. As trustee of the Figtree Reserve Superannuation Fund, Millerview Constructions Pty Limited acquired Lot 1 in Deposited Plan 1094055, Lot 2 in Deposited Plan 1094055 and Lot 5 in Deposited Plan 1008379. Millerview Constructions Pty Limited retired as trustee of the superannuation fund on 14 June 2007, when it was replaced by Figtree Reserve Pty Limited. Subsequently, Figtree Reserve Pty Ltd retired as trustee of the superannuation fund on 2 April 2010 when it was replaced by the plaintiff, Argyle Gravel & Concrete Pty Ltd, as trustee. 2To this date, however, each of the three lots remains registered in the name of Millerview Constructions Pty Ltd. Millerview Constructions Pty Ltd was wound up by order of the Supreme Court of Queensland on 13 March 2008, when Mr John Cunningham was appointed its liquidator. 3On 1 November 2006, Millerview executed a mortgage debenture to Rochgate Pty Limited of all its assets and undertakings, as security for sums advanced by Rochgate. It does not appear that in so doing it was acting in its capacity as trustee of the superannuation fund. Millerview, on 20 February 2007, demised the three properties to Antiquaire Pty Limited by lease registered number AG592507, apparently for a term of ten years with five options to renew. Millerview contends, but it is not necessary to resolve for present purposes, that that involves some rectifiable error. 4In the course of the liquidation, the plaintiff sought to have the three properties to which I have referred transmitted to it as new trustee of the superannuation fund. The liquidator opposed this course, because it was apparently opposed by Rochgate. Eventually, on 20 February 2013, the liquidator gave notice of disclaimer pursuant to (Cth) Corporations Act 2001, s 568A of the disclaimer of the subject properties on the footing that they were property that may give rise to a liability to pay money or some other onerous obligation, within the meaning of s 568(1)(d). 5By originating process filed on 5 March 2013, the plaintiff seeks a declaration that the property is held upon trust for the Figtree Reserve Superannuation Fund, and an order setting aside the disclaimer. The court can set aside the disclaimer under s 568B if satisfied that the disclaimer would cause to persons who have or claim to have interest in the property prejudice that is grossly out of proportion to the prejudice that setting aside the disclaimer would cause to the company's creditors. That section applies if the application is made within fourteen days after notice of the disclaimer is given. Alternatively, under s 568E the court can set aside the disclaimer on the same grounds and if it is also satisfied that the prejudice to the claimants would be grossly out of proportion to that to persons who have changed their position in reliance on the disclaimer taking effect. 6In the circumstances of this case, I need not be too troubled with whether the application was made within or outside the fourteen day period, as there is no suggestion that persons have changed their position in reliance on the disclaimer taking effect. In either case, I would be satisfied that the prejudice that would be occasioned to Argyle as trustee of the superannuation fund would be grossly out of proportion to that which setting aside the disclaimer would cause to creditors or to persons who have changed their position in reliance on it. 7However, s 568F provides that the Court may order that disclaimed property vest in a person entitled to the property, and to proceed under that section would, it seems to me, avoid the need for further proceedings and difficulty, both in connection with the liquidation and in connection with the administration of the superannuation fund. 8Notice of the disclaimer was given to Rochgate, and does not appear to have elicited any response. In circumstances where the liquidator has disclaimed the property and Rochgate has manifested no interest in applying to set aside the disclaimer or have it vest in Rochgate, it seems to me that the evidence suffices to enable a vesting order to be made in favour of Argyle. 9Pursuant to Corporations Act s 568F(1)(c), I order that the property described in the schedule vest in the plaintiff Argyle Gravel and Concrete Pty Ltd as trustee for the Figtree Reserve Superannuation Fund. Schedule: Lot 1 in Deposited Plan 1094055, Lot 2 in Deposited Plan 1094055, Lot 5 in Deposited Plan 1008397. 10I direct that this order be entered forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2013