In the matter of All Class Insurance Brokers Pty Ltd (in liq); Vardy v Westpac Banking Corporation [2014] NSWSC 475

Supreme Court New South Wales

Medium Neutral Citation: In the matter of All Class Insurance Brokers Pty Ltd (in liq); Vardy v Westpac Banking Corporation [2014] NSWSC 475 Hearing dates: 28 March 2014 Decision date: 30 April 2014 Jurisdiction: Equity Division - Corporations List Before: White J Decision: Refer to para [54] of judgment. Catchwords: CORPORATIONS - liquidation - liquidator's applications - financial services licensee required to maintain trust account - trust account deficient - whether liquidator is entitled to be paid on an indemnity basis from the trust account for reasonable remuneration and expenses - whether money paid into the account by the company should be dealt with as an asset of the company and be paid to the liquidator - trust account allowed to go into debit - creditors entitled to participate in distribution of the account - whether money should be distributed pari passu to eligible creditors - Whether distribution to be in accordance with claimants' ability to trace - Corporations Act 2001 (Cth), ss 479, 511, 764A, 766A, 766C, 981A-981H - Corporations Regulations 2001 (Cth), regs 7.8.01-7.8.03 - Trustee Act 1925 (NSW), s 63 - Insurance (Agents and Brokers) Act 1984 (Cth), s 28 Legislation Cited: Corporations Act 2001 (Cth) Trustee Act 1925 (NSW) Banking Act 1959 (Cth) Insurance (Agents and Brokers) Act 1984 (Cth) Cases Cited: Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 In Re MF Global Australia Ltd (in liq) [2012] NSWSC 994 Re Universal Distributing Co Pty Ltd (in liq) (1933) 48 CLR 171 Re Berkeley Applegate (Investment Consultants) Ltd (in liq) [1989] Ch 32 Grime Carter & Co Pty Ltd v Whytes Furniture (Dubbo) Pty Ltd [1983] 1 NSWLR 158 13 Coromandel Place Pty Ltd v CL Custodians Pty Ltd (in liq) (1999) 30 ACSR 377; 17 ACLC 500 Re Sutherland; French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361 In Re MF Global Australia Ltd (in liq) (No. 2) [2012] NSWSC 1426 Re Greater West Insurance Brokers Pty Ltd [2001] NSWSC 825; (2001) 39 ACSR 301 James Roscoe (Boulten) Limited v Winder [1915] 1 Ch 62 Staniar v Evans (1886) 34 Ch D 470 Edgar v Plomley [1900] AC 431 In Re Dacre; Whittaker v Dacre [1916] 1 Ch 344 Re Hallett's Estate (1880) 13 Ch D 696 Re Global Finance Group Pty Ltd (in liq) [2002] WASC 63; (2002) 26 WAR 385 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Black v S Freedman & Co (1910) 12 CLR 105 Wambo Coal Pty Ltd v Ariff [2007] NSWSC 589; 25 ACLC 809 Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371 Re National Buildplan Group Pty Ltd (subject to a deed of company arrangement) [2014] NSWSC 146 Georges v Seaborn International [2012] FCA 75; (2012) 87 ACSR 442 Georges v Seaborn International Pty Ltd [2012] FCAFC 140; 294 ALR 468 Re Perpetual Investment Management Ltd as responsible entity for Perpetual's Monthly Income Fund and Perpetual's Wholesale Monthly Income Fund [2011] NSWSC 615 Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 Category: Interlocutory applications Parties: Darren John Vardy (Plaintiff) St George Bank - a division of Westpac Banking Corporation (Defendant) The Hollard Insurance Company (Interested Party - 1) Global Transport & Automotive Insurance Solutions Pty Ltd (Interested Party - 2) WI Premium Funding Ltd (Interested Party - 3) Wesfarmers General Insurance Ltd (Interested Party - 4) Representation: Counsel: J T Johnson (Plaintiff) M F Newton (1st and 2nd Interested Parties) C Higginbotham (3rd and 4th Interested Parties) Solicitors: MCW Lawyers (Plaintiff) Lander & Rogers (3rd & 4th Interested Parties) File Number(s): 2013/357269