Federal Court of Australia

Secatore, in the matter of Tailored Freight Property Pty Ltd (in liq) [2025] FCA 1066

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 57 of the Federal Court of Australia Act 1976 (Cth) that the liquidator of Tailored Freight Property Pty Ltd (In Liquidation) ACN 664 441 909 (Company), Bruno Secatore of SSB Advisory, Level 24, 570 Bourke Street, Melbourne VIC 3000, be appointed as receiver and manager (Receiver) (without security) of the property of the Tailored Freight Property Trust ABN 98 208 089 713 (TFP Trust) and any other property held by the Company on trust (Trust Property).

2.    The Receiver has all of the powers that a receiver has in respect of the business and property of a company under section 420 of the Corporations Act 2001 (Cth) (Corporations Act) (other than in subs 420(2)(s), (t), (u) and (w)) as if the reference in that section to ‘the corporation’ were a reference to the ‘TFP Trust’ including, without limitation:

(a)    to do all things necessary and convenient to effect the sale of the Trust Property;

(b)    to enter into any dealings, including leases, in relation to the Trust Property;

(c)    determine and make payment of any claims against the Trust Property;

(d)    in accordance with the priorities set out in s 556 of the Corporations Act, distribute the proceeds of the sale of the assets of the TFP Trust (after payment of the costs, expenses and remuneration of the Receiver in his capacity as the Receiver and as liquidator of the Company) to any creditors of the TFP Trust; and

(e)    distribute any surplus thereafter to the beneficiaries of the TFP Trust.

3.    Pursuant to rule 1.34 of the Federal Court Rules 2011 (Cth) (Rules), the requirement for the plaintiff as receiver to file a guarantee under rules 14.21 and 14.22 be dispensed with.

4.    The plaintiff's costs of this application be paid out of the Trust Property on an indemnity basis.

5.    The costs, expenses and remuneration of the Receiver in:

(a)    acting as the liquidator of the Company; and

(b)    acting as the Receiver of the assets and undertaking of the TFP Trust,

be paid from the Trust Property.

6.    Any creditor of the Company, or other person with a sufficient interest in the TFP Trust, or who can demonstrate sufficient interest to vary the orders sought on the giving of reasonable notice to the plaintiff, have liberty to apply to vary these orders upon 3 days’ notice to the plaintiff.

7.    An order that liberty be granted to the applicant to apply to the Court for orders discharging and releasing the Receiver on seven (7) business days’ notice by sending an email to the relevant judicial officer.

8.    The plaintiff notify ASIC and creditors, whose contact details are known to the plaintiff of these orders within three (3) business days.

9.    The matter be referred to the National Operations Registrar for allocation to a docket judge.

THE COURT DIRECTS THAT:

10.    Pursuant to s 90-15 of Schedule 2 to the Corporations Act, that the Receiver is justified in treating:

(a)    all of the assets of the TFP Trust as assets beneficially held by the Company, as bare trustee, subject to any charge or lien that the Company has over the assets of the TFP Trust to secure the payment of any debts properly incurred by the Company as trustee; and

(b)    all of the debts and liabilities incurred by the Company in the conduct of its business as liabilities of the TFP Trust.

11.    The Receiver, in his capacity as liquidator of the Company and Receiver of the TFP Trust is justified in distributing the Trust Property as follows:

(a)    first, paying the amount of the plaintiff's costs of this application as determined in accordance with Order 4 above;

(b)    second, paying the petitioning creditor's costs of the winding up application filed against the defendant on 20 August 2025 in proceeding S ECI 2025 04021 being an amount fixed in the sum of $8,024.14;

(c)    third, paying the Receiver's expenses and remuneration in his capacity as liquidator of the Company, from 20 August 2025 to 26 August 2025 with such remuneration to be determined in the amount of $34,573.00 plus GST;

(d)    fourth, paying the Receivers expenses and remuneration in his capacity as liquidator of the Company and in his capacity as Receiver of the TFP Trust up until the conclusion of the receivership and liquidation of the Company, on a time basis according to the hours for which he, or any employee of SSB Advisory, engage or have engaged in work necessary for and relevant to the purpose of the receivership or liquidation after 26 August 2025, with such remuneration to be calculated at the standard hourly rates of SSB Advisory from time to time for work of that nature, together with all reasonable out of pocket expenses and subject to Court approval; and

(e)    fifth, distributing the balance, after payment of the amounts in (a) - (c) above, to the admitted creditors of the Company in accordance with the priority regime established by ss 555, 556, 560 and 561 of the Corporations Act and distribute any surplus thereafter to the beneficiaries of the TFP Trust.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

DOWNES J:

1    On 20 August 2025, Mr Bruno Secatore was appointed as liquidator of Tailored Freight Property Proprietary Limited (in liquidation) (Company), pursuant to orders of the Supreme Court of Victoria made in preceding S ECI 2025/04021.

2    Prior to its liquidation, the Company acted as trustee of the Tailored Freight Property Trust (the Trust). By the originating process filed on 29 August 2025, the liquidator seeks various orders including an order pursuant to section 57 of the Federal Court of Australia Act 1957 (Cth) that the liquidator be appointed as receiver and manager (without security) of the property of the Trust (Trust Property).

3    In support of his application, which has come before me as a duty matter, the liquidator relies upon an affidavit of himself affirmed on 28 August 2025, an affidavit of service of Ms Selin Hasip and an outline of submissions dated 1 September 2025.

Background

4    On 12 December 2022, the Company was incorporated. At all times since its incorporation, the Company has been the trustee of the Trust pursuant to a unit trust deed dated 12 December 2022 (Trust Deed). Also on that date, the Trust was established pursuant to the Trust Deed.

5    The Company was automatically removed as trustee of the Trust upon being placed into liquidation pursuant to clause 36.9 of the Trust Deed. The liquidator is not aware of any replacement trustee being appointed.

6    By the Trust Deed, the trustee is entitled to be indemnified out of the trust fund against all liabilities incurred in the execution or attempted execution of any rights or obligations in relation to the Trust and/or all claims relating to any matter or thing done or omitted to be done concerning the Trust. The Trust Deed empowers the trustee to, among other things, deal with any property of the Trust and, without limitation, to buy or sell or in any way acquire or dispose of any interest in any property and construct, demolish, maintain, repay, renovate, reconstruct, develop and or improve any property, whether income-producing or not.

7    Based on his investigations, the liquidator believes that the Company operated the business of property holdings, did not act in any other capacity other than as trustee of the Trust, and carried on the business solely in its capacity as trustee of the Trust.

8    The liquidator’s investigations have also revealed that, as at the date of his appointment, the Company operated two bank accounts and is the sole registered proprietor as trustee of two real properties, both of which are located in New South Wales (the properties). The properties are encumbered by a mortgage in favour of National Australia Bank. The liquidator has obtained and been provided with three informal valuations and intends to shortly obtain a formal valuation of the properties.

9    The liquidator seeks the orders today to allow him to take immediate steps to take possession of the properties, to appoint a selling agent to market and sell the properties, to facilitate payment to the Trust’s creditors and for the distribution of any remaining assets to the beneficiaries of the Trust. Subject to the sale of the properties, the liquidator considers it is unlikely that there will be sufficient assets to satisfy all creditors in full and for a return to be available to the named unitholders of the Trust, and it is unlikely that that there will be any other significant asset recoveries in the liquidation and receivership of the Company.

Consideration

10    This Court will ordinarily appoint a receiver for the protection or preservation of property for the benefit of the persons who have an interest in it. I am satisfied on the evidence that that is the purpose that the application is brought in this case.

11    Based on the material before me, I am also satisfied that potentially affected parties had been notified of this application. A sealed copy of the originating process and the liquidator’s affidavit was served on the Australian Securities and Investments Commission on 29 August 2025. In addition, the major creditors of the Company have been advised of the liquidator’s intention to make this application.

12    In any event, the draft orders provided by the liquidator include an order which enables any person who wishes to be heard in relation to any orders which are made to bring the matter back on for hearing.

13    No objections have been provided to the liquidator in relation to the application.

14    In a case such as this one, I am satisfied that it is just and convenient to make the orders appointing the liquidator as receiver and manager of the Trust Property, in circumstances where the Company did not act or operate in any other capacity other than as trustee of the Trust; the Company has been automatically removed as trustee; the Company holds the Trust Property as bare trustee; the Company is not otherwise empowered to deal with the Trust Property; the Trust Property needs to be preserved and ultimately realised for the benefit of the creditors; and the liquidator cannot distribute any proceeds, pursuant to section 556 of the Corporations Act 2001 (Cth), from the realisation of the assets of the Trust without such orders being made.

15    It is also appropriate to make the direction which is sought pursuant to section 90-15 of Sch. 2 to the Corporations Act.

16    It is also appropriate for the liquidator to be appointed as receiver and manager of the Trust Property without security for the same reasons given in Okara Pty Ltd, (Administrators Appointed), in the matter of Okara Pty Ltd, (Administrators Appointed) [2025] FCA 818 at [20] (Downes J).

17    The liquidator also seeks directions concerning the order of distribution of the Trust Property including orders that the plaintiff’s costs, expenses and remuneration, in acting in his capacity as liquidator of the Company and receiver of the Trust Property, be paid from the Trust Property. The material before me sets out the work which the liquidator and his staff have undertaken since his appointment as liquidator on 20 August 2025; based on this, orders are also sought in relation to court approval of remuneration for the period 20 August 2025 to 26 August 2025. As to remuneration for future work, the proposed order is expressed to be subject to court approval, which is appropriate. Such approval should be sought in this proceeding.

18    In these circumstances, I am satisfied that it is appropriate to make an order in terms of the draft provided by Ms Hasip who appears on behalf of the liquidator, but including an order that the proceeding be referred to the National Operations Registrar for allocation to a docket judge.

Associate:

Dated:    2 September 2025