2018 – Case reviews


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


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


Harstedt Pty Ltd v Tomanek [2018] VSCA 84 – what qualifies as “assistance” for the purposes of a “knowing assistance” claim, under the second limb of Barnes v Addy – different forms of third party liability as an accessory for breach of fiduciary duty


Mighty River International Ltd v Brian Hughes and Daniel Bredencamp as Administrators of Mesa Minerals Ltd [2018] HCA 38 – the DOCA which took effect as a holding DOCA was valid


Lane (Trustee), in the matter of Lee (Bankrupt) v Commissioner of Taxation (No 3) [2018] FCA 1572 – where a payment of trust money is recovered as an unfair preference, whether it becomes trust money again, or instead forms part of the bankrupt’s general estate