In the matter of RMATA Cutelli Pty Ltd (in liq) [2018] NSWSC 382

Supreme Court New South Wales

Medium Neutral Citation: In the matter of RMATA Cutelli Pty Ltd (in liq) [2018] NSWSC 382 Hearing dates: 20 March 2018 Decision date: 27 March 2018 Jurisdiction: Equity - Corporations List Before: Black J Decision: The First and Second Defendants hold the Hurstville Grove property, as to 95.71%, on a resulting trust for the Second Plaintiff. Adam Bernard Preiner and Liam Bailey are appointed trustees for sale of the property and are vested with powers reasonably necessary to complete the sale of the property, as pursuant to s 66G of the Conveyancing Act (NSW) 1919. A discharge of indebtedness to the Second Plaintiff and withdrawals on the Second Plaintiff's bank account by the First and Second Defendants are unreasonable director-related transactions within the meaning of s 588FDA of the Corporations Act 2001 (Cth). Catchwords: EQUITY – resulting trust – where company directors have transferred the sale proceeds of company property to themselves to fund the purchase of a property – where there is no evidence of a contrary intention to rebut the presumption of a resulting trust – whether the Court will declare that property is held by directors on resulting trust for the company.

CORPORATIONS – unreasonable director-related transactions – where company directors have entered into transactions that no reasonable person in the company's circumstances would have entered into – where the transaction confers no benefit on the company – where the transaction confers benefit to the company directors at the expense of the company's creditors – whether the transaction was an unreasonable director-related transaction for the purpose of s 588FDA of the Corporations Act 2001 (Cth). Legislation Cited: - Civil Procedure Act 2005 (NSW) s 100 - Conveyancing Act 1919 (NSW) ss 66F, 66G - Corporations Act 2001 (Cth) ss 588FDA, 588FE, 588FF Cases Cited: - Angus Carnegie Gordon in his capacity as liquidator of Lyon Form Pty Ltd (in liq) & Anor v Leon Plant Hire Pty Ltd (in liq) & Ors [2015] NSWSC 397 - Callahan v O'Neill [2002] NSWSC 877 - Calverley v Green (1984) 155 CLR 242 - Crowe-Maxwell v Frost [2016] NSWCA 46; (2016) 91 NSWLR 414; 111 ACSR 583 - Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81; (2016) 91 NSWLR 732 - Hogan v Baseden (1997) 8 BPR 15,723 - Lam v Lam [2016] VSC 298 - National Australia Bank Ltd v Pasupati [2011] NSWSC 540 - Ong v Lottwo Pty Ltd (in liq) [2013] SASCFC 57; (2013) 116 SASR 280 - Ross v Ross [2010] NSWCA 301 - Smith (in his capacity as liquidator of Action Paint Ball Games Pty Ltd) v Starke (No 2) [2015] FCA 1119; (2015) 109 ACSR 145 - Tory v Tory [2007] NSWSC 1078 - Vasudevan v Becon Constructions (Australia) Pty Ltd [2014] VSCA 14; (2014) 97 ACSR 627 - Weaver v Harburn [2014] WASCA 227 - Ying Mui Pty Ltd & Ors v Hoh (No 3) [2017] VSC 29; (2017) 119 ACSR 577 Category: Principal judgment Parties: Adam Bernard Preiner in his capacity as official liquidator of RMATA Cutelli Pty Ltd (in liq) (First Plaintiff) RMATA Cutelli Pty Ltd (in liq) (Second Plaintiff) Rosario Cutelli (First Defendant) Maria Cutelli (Second Defendant) Representation: Counsel: A G Martin (Plaintiffs) R Byrnes (Solicitor – Defendant)