In the matter of Stansfield DIY Wealth Pty Limited (in liquidation) [2014] NSWSC 1484

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Stansfield DIY Wealth Pty Limited (in liquidation) [2014] NSWSC 1484 Hearing dates: Friday, 26 September 2014 Decision date: 30 October 2014 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Application for directions that liquidator be permitted to sell trust assets refused. Advice given that liquidator would be justified in causing company to resign as trustee of super fund, and in applying to the court to be appointed as receiver of the assets of the super fund, with the powers that a liquidator has in respect of the property of a company under Corporations Act, s 477(2), for the purposes of enforcing the company's right of indemnity as trustee of the fund. Catchwords: CORPORATIONS - External administration - winding up - liquidator's applications - for directions permitting liquidator to sell trust assets - where company is trustee of self-managed superannuation fund - whether liquidator's statutory power of sale extends to trust assets - held, it does not - whether company ought to remain as trustee when by doing so it commits an offence against superannuation law - held, it should not - whether directions sought can be made under s 479(3) - held, they cannot - advice given that liquidator would be justified in applying to be appointed receiver of trust assets to enforce right of indemnity. Legislation Cited: (CTH) Corporations Act 2001, s 9, 474, 477, 479(3), 501, 1318 (CTH) Bankruptcy Act 1966, s 116(2)(a) (CTH) Superannuation Industry (Supervision) Act 1993, s 120(2)(e), 126K, 127, 133, 310, 312 (NSW) Trustee Act 1925, s 63, 81 (NSW) Conveyancing Act 1919, s 66G, 81 (VIC) Trustees Act 1958, s 63 (WA) Trustees Act 1962, s 75 Cases Cited: 13 Coromandel Place Pty Ltd v C L Custodians Pty Ltd (in liq) (1999) 30 ACSR 377 In the matter of AAA Financial Intelligence Ltd (in liq) [2014] NSWSC 1004 Apostolou v VA Corporation of Australia Pty Ltd [2010] FCA 64; (2010) 77 ACSR 84 Apostolou v VA Corporation of Aust Pty Ltd [2011] FCAFC 103 Bastion v Gideon Investments Pty Ltd (in liq) (2000) 35 ACSR 466 Bagshaw v Scott [2002] FCAFC 362; (2002) 126 FCR 27 Belar Pty Ltd (in liq) v Mahaffey [2000] 1 Qd R 477 Caterpillar Financial Australia Limited v Ovens Nominees Pty Ltd [2011] FCA 677 Chief Commissioner of Stamp Duties for New South Wales v Buckle (1998) 192 CLR 226 Re Crest Realty Pty Ltd (No 2) (in liq) [1977] 1 NSWLR 664; (1977) 2 ACLR 502 Dayroll Pty Ltd (in liq) v Dayroll NSW Pty Ltd [2009] NSWSC 895 Re Exhall Coal Co Ltd (1866) 55 ER 970 Fletcher, in the matter of Starrit Pty Ltd (in liq) [2012] FCA 803 In the matter of Gramarker Pty Ltd; Clifford Sanderson (as liquidator of Gramarker Pty Limited) v Simon Kerr [2014] NSWSC 243 Grime Carter & Co Pty Limited v Whytes Furniture (Dubbo) Pty Limited [1983] 1 NSWLR 158 Re Indopal Pty Ltd (1987) 12 ACLR 54 Jennings v Mather [1901] 1 KB 108 Kerr, in the matter of Angel's Castle Pre-School Pty Ltd (In Liquidation) [2010] FCA 786 Kitay, in the matter of South West Kitchens (WA) Pty Ltd [2014] FCA 670 Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344; (2008) 74 NSWLR 550 Morgan v Swansea Authority (1878) 9 Ch D 582 Neeeat Holdings (in liq) (2013) 299 ALR 744 In the matter of North Food Catering Pty Ltd [2014] NSWSC 77 Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 Official Assignee of O'Neill v O'Neill (1898) 16 NZLR 628 Pleash, in the matter of Suncoast Restoration Pty Ltd (in liq) [2013] FCA 355; (2013) 211 FCR 203; (2013) 93 ACSR 606 Savage & Whitelaw v Union Bank of Australia Ltd (1906) 3 CLR 1170 Scott v Surman (1743) Willes 400 St Thomas's Hospital v Richardson [1910] 1 KB 271 Stott v Milne (1884) 25 Ch D 710 Re Suco Gold Pty Ltd (In Liq) (1983) 33 SASR 99; (1983) 7 ACLR 873 Re Sutherland; Re French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; (2003) 59 NSWLR 361; 48 ACSR 97 Theobald, in the matter of Finplas Pty Ltd [2014] FCA 31 Category: Principal judgment Parties: Michael John Morris Smith in his capacity as liquidator of Stansfield DIY Wealth Pty Limited (in liquidation) (first plaintiff) Stansfield DIY Wealth Pty Limited (in liquidation) (second plaintiff) Elliott Stansfield (defendant) Representation: Counsel: J T Johnson (plaintiffs) Solicitors: Watson Mangioni Lawyers (plaintiffs) File Number(s): 2014/237151