2018 – Case reviews

February

Commonwealth v Byrnes and Hewitt as receivers and managers of Amerind Pty Ltd (receivers and managers appointed)(in liq) [2018] VSCA 41 (Amerind) – trading trusts, trustees’ right of indemnity – property of the trustee, statutory scheme of priority applies on receivership of the trustee, ss 433, 556 and 560 of the Corporations Act, employee entitlements protected, question of whether the trustee’s right of indemnity requires trust assets only to be applied to pay trust debts, or whether they may also be applied to non-trust debts, Re Enhill to be applied by trial judges in Victoria pending further appeal decisions

March

Jones (liquidator) v Matrix Partners Pty Ltd, re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40 (Killarnee) – trading trusts, trustees’ right of exoneration – property of the trustee, no power to sell trust assets under s 477 as liquidator of bare trustee, no power to sell trust assets where company no longer express trustee, can acquire power to sell trust assets by court order for judicial sale, usually with appointment as receiver of trust assets, scheme of priorities applies (mostly), some elements of priority scheme may not apply in every case though employee entitlements and liquidators’ costs generally qualify, trust assets not available for distribution to non-trust creditors, In re Suco Gold correct, Re Enhill incorrect