Federal Court of Australia

Vouris, in the matter of Rapid Response Revival Research Limited (Administrators Appointed) (No 2) [2025] FCA 1088

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 90-15 of Sch 2 of the Corporations Act 2001 (Cth) (the Corporations Act) or, alternatively, s 57 of the Federal Court of Australia Act 1976 (Cth), John Vouris, Richard Albarran, Brent Kijurina and Aaron Dominish of Hall Chadwick, Level 40, 2 Park Street, Sydney in the State of New South Wales, be appointed as receivers and managers (Receivers) over the CellAED IP Holding Unit Trust (Trust) and the Trust’s assets.

2.    The requirement for receivers to file a guarantee under rr 14.21 and 14.22 of the Federal Court Rules 2011 (Cth) be dispensed with.

3.    The First Plaintiffs, in their capacity as Receivers, have all the powers that a receiver has in respect of a business and properties of a company under s 420 of the Corporations Act, as if reference in that section to “property of the corporation” or “the corporation” (as applicable) were a reference to the Trust and its assets.

4.    The costs and expenses incurred by, and the remuneration of, the First Plaintiffs in acting as receivers of the Trust be paid from the assets of the Trust and, if they be insufficient, from the assets of the Second Plaintiff.

5.    In relation to Order 4, the Receivers be entitled to be paid remuneration for their services, from time to time, calculated on a time basis at the rates ordinarily charged by Hall Chadwick (in the administration of CellAED).

6.    The Plaintiffs’ costs of this application be paid from the assets of the Trust, and if insufficient, be their costs in the voluntary administration of the Second Plaintiff, and if that company is wound up, be their costs in the winding up.

7.    Liberty be granted to any person affected by these orders, including any creditor of the Second Plaintiff, or any beneficiary of those trusts, to apply to vary or set aside these orders on seven (7) business days’ notice to the Receivers.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This application is brought by Messrs John Vouris, Richard Albarran, Brent Kijurina and Aaron Dominish (the Administrators) in their capacity as joint and several administrators of Cellaed Life Saver Pty Ltd (Administrators Appointed) (CellAED). In short, the Administrators seek an order that they be appointed as receivers and managers over the CellAED IP Holding Unit Trust (the Trust) and its assets. CellAED is the former trustee of the Trust; it was automatically removed from that position upon the appointment of the Administrators (in June 2025) and has since only acted as bare trustee. In that setting, the orders sought are said to be “necessary” to:

(1)    ensure the proper administration of the Trust, CellAED, and other associated entities;

(2)    provide for the Trust, which is currently without a solvent trustee, to continue to exist and for its assets to be dealt with for the benefit of creditors and/or beneficiaries;

(3)    increase the asset value of a prospective sale of the business of CellAED and other associated entities; and

(4)    satisfy the liabilities incurred by CellAED in its capacity as trustee of the Trust and the Administrators’ remuneration in their capacity as receivers.

A brief overview

2    The context in which the present application arises is largely canvassed in Vouris, in the matter of Rapid Response Revival Research Limited (Administrators Appointed) [2025] FCA 850 (Rapid Response Revival (No 1)) (see [1] – [3]; [6] – [25]) and need not be the subject of much greater recitation; it is, however, appropriate to note the following facts and considerations.

The Companies

3    On 30 June 2025, the Administrators were appointed over the following entities:

(1)    CellAED.

(2)    Rapid Response Revival Research Limited (Administrators Appointed) (RRRR).

(3)    Aedata Pty Ltd (Administrators Appointed).

(4)    First Aid Fast App Pty Ltd (Administrators Appointed).

(5)    RRR International Pty Ltd (Administrators Appointed).

(6)    RRR Manufacturing Pty Ltd (Administrators Appointed).

(7)    RRR Research Pty Ltd ACN 635 855 873 (Administrators Appointed).

(together, the Companies) (see Rapid Response Revival (No 1) [6] – [7]).

4    The Administrators filed an Originating Process with the Court on 21 July 2025. The principal relief then sought were orders, pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (the Corporations Act), extending the period within which the Administrators were to convene the second meeting of creditors in respect of each of the Companies. Several ancillary orders were also sought under s 447A(1) to modulate the operation and application of Part 5.3 of the Act.

5    That relief was granted on 23 July 2025: Rapid Response Revival (No 1). Justice Cheeseman, sitting as the Commercial and Corporations Duty Judge, relevantly observed (at [2]) that:

The [C]ompanies’ operations pertain to the research, development, manufacturing and sale of proprietary hand-held and mobile defibrillators and revivors. The Administrators describe the major assets of the [C]ompanies as comprising intellectual property rights, certificates, technology and workforce. The [C]ompanies have an extensive catalogue of registered trade marks, designs and patents comprising 264 trade marks, 113 registered designs, and 139 patents across numerous jurisdictions. The [C]ompanies operate in a niche industry for specific medical technology and the Administrators expect that there will be greater interest in the purchase of the companies’ assets (not only inventory but also the intellectual property) by prospective overseas purchasers than domestically. …

6    In granting the relief sought, her Honour relied upon, amongst other things, the fact that:

(1)    the Administrators were then engaged in work that was “necessary to conduct a global sales campaign” in respect of the business of the Companies (at [30] – [31]);

(2)    extension of the convening period would allow for the intellectual property registrations of the Companies to be advanced or renewed, so as to enhance, at least prima facie, the value of the Companies’ business offering (at [30]); and,

(3)    the Administrators were “focussed” upon maximising the return to creditors by the sale of the Companies’ assets (at [33]).

CellAED as erstwhile trustee of the Trust

7    CellAED was incorporated on 29 June 2017. It was appointed as trustee of the Trust pursuant to the terms of the “Unit Trust Deed: The CellAED IP Holding Unit Trust” dated 20 November 2017 (the Deed). The Trust operated as a fixed unit trust; all the units were, and are, held by RRRR, the holding entity of the Companies: see Rapid Response Revival (No 1) [8].

8    The effect of the Companies’ corporate structure was that CellAED, as the trustee of the Trust, owned the proprietary rights to the registered patents and designs utilised by the broader group.

9    As trustee, CellAED incurred liabilities of some $2.5m; that amount remains outstanding.

10    The Deed provides that the office of trustee of the Trust will be “vacated” if the trustee “enters into administration”. As such, CellAED has, from 30 June 2025, served as bare trustee of the Trust, lacking the power to deal with or realise its assets: see, eg, Meagher, In the matter of Okara Pty Ltd (Administrators Appointed) (No 2) [2025] FCA 1013 [8] and the authorities cited therein. That state of affairs has enlivened some difficulty for the Administrators, who continue to pursue a sales campaign in respect of the business of the Companies and, naturally, require the ability to transfer the assets of the Trust. They seek to acquire that ability by orders appointing them as receivers and managers of the Trust and its assets pursuant to, relevantly, s 57 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).

11    It is somewhat curious that RRRR, the sole unit holder of the Trust, has not sought to exercise its powers to appoint an alternative trustee. Such power is conferred by cl 18.1(b) of the Deed:

18.1    Removal of Trustee and appointment of new trustee

The Unitholders may at any time and from time to time by written notice to the Trustee evidencing Special Consent:

…

(b)     appoint any person as trustee of the Trust, either alone or jointly with any continuing Trustee.

12    Mr Hyland for the Administrators proffered the following explanation:

… by seeking orders of the court … I suppose the administrators, in good faith, also want to be seen as having clean hands in seeking the appointment from the court as opposed to, again, having internally appointed themselves, if you will, by virtue of the control of two separate entities or appointing themselves in their capacities as administrators.

13    Little, if any, assurance can be gleaned from such; indeed, it appears the Administrators, despite having the power to appoint themselves as trustees of the Trust (such that they might, thereby, exercise the power to sell the Trust assets), have nonetheless chosen a far more costly process.

Appointment as receivers and managers of the Trust

14    The difficulties which the Administrators now face (in being able to deal with trust assets where (a) the relevant trust deed contains an “ipso facto” clause; and (b) the corporate trustee is in administration) is not uncommon; indeed, it is a garden-variety issue in this Court: see, eg, and most recently, Franklin, in the matter of Southern Cross Farms SA Pty Ltd [2025] FCA 1079; Secatore, in the matter of Tailored Freight Property Pty Ltd (in liq) [2025] FCA 1066; Johnstone, In the matter of McLean Property Management Pty Ltd (in liquidation) [2025] FCA 1003; Rohrt, in the matter of Australian Cosmetic and Laser Clinic Pty Ltd (administrator appointed) [2025] FCA 797 (Rohrt); Deputy Commissioner of Taxation v Kate’s Cooking Pty Ltd (In Liq) [2025] FCA 529 (Kate’s Cooking); Krejci (Liquidator) v Panella, Richmond Lifts Pty Ltd (In Liq) (No 2) [2025] FCA 248. Although CellAED retains the right of exoneration and indemnity in respect of any liabilities incurred as trustee of the Trust from the Trust assets, it has no power of its own to sell any asset of the Trust. Although it holds an equitable lien to support its right of indemnity, in order to sell the Trust assets, it requires an order of the Court.

15    There is a panoply of authorities in this Court in which orders have been made appointing the external administrator of a company that was a former trustee of a trust as the receiver of the assets of said trust. Such an appointment is commonly associated with the conferral of wide powers upon the receiver(s) to realise the assets of the trust as a means of meeting the liabilities incurred by the trustee and to “facilitate and simplify the administration of the company” by keeping the trust assets “under the same control as the company whilst in its administration”: Re Mecfab Holdings Pty Ltd [2015] NSWSC 46 [9]; see also Rohrt [11] – [12]. Necessarily, the appointment of administrators as receivers in this way protects and preserves the property of the relevant trust for the benefit of those who will have an interest in it, whilst, at the same time, preserving the trustees’ rights of exoneration and indemnity from the assets of the trust.

16    In the circumstances of the present case, where essential and vital assets of the business of the Companies are held in the Trust, it is appropriate to allow the Administrators as wide a power as possible to sell those assets. Any third party that is desirous to propose a Deed of Company Arrangement involving the acquisition of such business would, necessarily, require certainty as to the transfer of the assets held in the Trust. The appointment of the Administrators as receivers simplifies and facilitates any such process.

17    In the result, it is appropriate that an order be made appointing the Administrators as receivers and managers over the assets of the Trust pursuant to s 57 of the Federal Court Act.

18    It is also now well-established that the appointment of receivers in this fashion does not require them to file guarantees under rr 14.21 – 14.22 of the Federal Court Rules 2011 (Cth): see, eg, Re Micheletto in his capacity as liquidator of Rogers Property Holdings Pty Ltd (in liq) [2024] FCA 1463; Walker (Administrator), in the matter of Goldin Australia Pty Ltd (Administrators Appointed) [2024] FCA 1518; Kate’s Cooking [11]. Such an order is appropriate in this case.

Common ancillary orders

19    It is commonplace to vest, in receivers appointed by the Court, as wide a powers as possible to facilitate the realisation of the relevant trust assets; such an order is, indeed, unremarkable. In that context, and having regard to that which has come before, it is appropriate to order that the Administrators, as receivers of the Trust, have all the powers that a receiver has in respect of the business and properties of a company under s 420 of the Corporations Act.

20    When administrators (or liquidators) are appointed as the receivers of trust assets of which the company under their control was the erstwhile trustee, it is now well-accepted that the costs and expenses (and associated remuneration) of the receivers (acting as such), be paid from the assets of the relevant trust. That conclusion necessarily follows from the fact that the conduct of the receivers, in the establishment of some fund from which the erstwhile trustees’ rights of indemnity is to be taken, is necessary in the proper administration of the Trust. That being so, it is appropriate to make such an order in the present circumstances, subject to the proviso that the Administrators may recover the relevant liabilities from CellAED to the extent that they are not recoverable from the assets of the Trust. It is also appropriate that the Administrators be entitled to be paid the remuneration for their services from time to time, calculated on a time basis at the rates ordinarily charged by their firm, Hall Chadwick.

21    The Administrators also seek orders that their costs of the application be paid from the assets of the Trust. That is appropriate given the application was, or might be said to be, necessary in the administration of the Trust. That said, some hesitation does exist around the making of this order. As mentioned, the Administrators were in the position whereby they could appoint themselves as trustees of the Trust which would, in turn, endow them with sufficient powers to sell the Trust assets for the purposes of meeting the Trust liabilities (including the erstwhile trustees’ right of indemnity). That would have been a rather more simple approach and, indeed, have involved substantially less expense. So much was accepted by Mr Hyland. Although no compelling reason was proffered as to why the application was made as it was, it may be that the Administrators would feel personally exposed to potential liability if they themselves were the trustee exercising the power of sale. While that is sufficient in the present case, applications such as the present should be discouraged if an alternative and cheaper course is open.

22    As is also common in cases of this nature, leave should be given to any person affected by these orders to apply to set them aside upon giving reasonable notice.

23    In the result, I propose to make the draft minutes of order, subject to an amendment being made to Order 6, being the deletion of the words that follow the words, “Notice to the receivers.”

Note

24    These are the amended and revised reasons for judgment given on 27 August 2025. Whilst the reasons given above refine and develop those that were delivered ex tempore, the substance of what was said that day has not been changed nor has any other material change been made.

Associate:    

Dated:    4 September 2025

SCHEDULE OF PARTIES