In the matter of BBY Limited (Receivers and Managers appointed) (in liquidation) (No 3) [2018] NSWSC 1718

Supreme Court New South Wales

Medium Neutral Citation: In the matter of BBY Limited (Receivers and Managers appointed) (in liquidation) (No 3) [2018] NSWSC 1718 Hearing dates: 22 June 2018 Date of orders: 12 November 2018 Decision date: 12 November 2018 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Directions and advice given to Liquidators: see [103]-[114] Catchwords: CORPORATIONS – External administration – Liquidation – Liquidators' applications – Application by liquidators of corporate trustee for directions consequent upon previous judgment – Date as at which client entitlements are to be ascertained – Whether the non-Equities/ETOs CSAs should be pooled, or transactions between them reversed – Whether funds in trust accounts in excess of trust obligation should be remitted to secured creditor – Whether liquidators justified in adopting process for claims and distribution – Whether appropriate to approve quantum of remuneration and disbursements in connection with distribution process in advance

CORPORATIONS – External administration – Liquidation – Liquidators' remuneration – Where questions of reasonableness and proportionality emerging – Preferable to consider upon completion of administration

COSTS – Proceedings by trustee for advice – Costs of all parties to be paid out of trust funds, pro rata according to the value of assets in the funds Legislation Cited: (NSW) Civil Procedure Act 2005, s 135 (NSW) Evidence Act 1995 , s 124 Cases Cited: 13 Coromandel Place Pty Ltd v CL Custodians Pty Ltd (in liq) [1999] FCA 144; (1999) 30 ACSR 377 AAA Financial Intelligence Ltd (in liq), Re [2014] NSWSC 1004 Bastion v Gideon Investments (2000) 35 ACSR 466; [2000] NSWSC 939 BBY Limited (Receivers and Managers appointed) (in liquidation), In the matter of [2016] NSWSC 1366 BBY Limited (Receivers and Managers appointed) (in liquidation), In the matter of (No 2) [2018] NSWSC 346 BBY Limited, In the matter of [2015] NSWSC 974 BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 Buckton, Re; Buckton v Buckton [1907] 2 Ch 406 Deputy Commissioner of Taxation v Starpicket Pty Limited (No 2), Re [2013] FCA 699 Farrow Finance Co Ltd v ANZ Executors and Trustees Co Ltd (1997) 23 ACSR 521 French Caledonia Travel Service Pty Limited (In Liquidation), Re (2003) 59 NSWLR 361; [2003] NSWSC 1008; 48 ACSR 97 Georges v Seaborn International (Trustee), in the matter of Sonray Capital Markets Pty Ltd (in liq) [2012] FCA 75; 87 ACSR 442 Grime Carter & Co Pty Limited v Whytes Furniture (Dubbo) Pty Limited (1983) 7 ACLR 540 Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 James v Douglas [2016] NSWCA 178 Lehman Brothers International (Europe) (in administration), Re [2010] 2 BCLC 301; [2009] EWHC 3228 (Ch) MF Global Australia Ltd (in liq), Re (No 2) [2012] NSWSC 1426 MF Global Australia Ltd, Re [2012] NSWSC 994; 267 FLR 27 National Australia Bank Limited v K.D.S. Construction Services Pty Ltd (1987) 163 CLR 668; [1989] HCA 65 North Food Catering Pty Ltd, Re [2014] NSWSC 77 North Food Catering Pty Ltd, Re [2014] NSWSC 77 Rouse v IOOF Australia Trustees Ltd (No 3) [1999] SASC 208 Sakr Nominees Pty Ltd, Re [2016] NSWSC 709 Say Enterprises Pty Ltd, In the matter of [2018] NSWSC 396 Suco Gold Pty Ltd, Re (1983) 33 SASR 99 Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529; [1960] HCA 86 Timeshare Resort Club Ltd (in liq), Re (2010) 187 FCR 13; [2010] FCA 673 Trio Capital Limited (Admin Apptd) v ACT Superannuation Management Pty Ltd [2010] NSWSC 941 Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 Warton v Yeo [2015] NSWCA 115 Wine National Pty Ltd, Re [2016] NSWSC 4 Texts Cited: Heydon JD, Cross on Evidence (2018, LexisNexis) Neville AG & Ashe AW, Equity Proceedings With Precedents (New South Wales) (1981, Butterworths) Category: Consequential orders (other than Costs) Parties: (2015/237028) Stephen Ernest Vaughan and Ian Richard Hall in their capacity as liquidators of BBY Limited (Receivers & Managers appointed) (In liquidation) ACN 007 707 777 (1P) BBY Limited (Receivers & Managers appointed) (In liquidation) ACN 007 707 777 (2P) J Mazzetti Pty Ltd ATF J Mazzetti Pty Limited Staff Superannuation Fund & Ors (1D) Peter Brian Haywood and Bronwen Menai Haywood (ATF the Haywood Superannuation Fund) (2D) Clive Riseam (3D) Securities Exchange Guarantee Corporation Ltd (4D) David Nadin (5D)