Federal Court of Australia

Secatore (Liquidator), in the matter of Fresh Cheese Co (Aust) Pty Ltd (In Liquidation) [2026] FCA 951

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 57 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and rule 14.21 of the Federal Court Rules 2011 (Cth) (Rules), the first plaintiffs, Bruno Anthony Robert Secatore and Glenn John Spooner (Liquidators), be appointed, without security, nunc pro tunc from 25 March 2026 as receivers over all of the present and after acquired property of the Fresh Cheese Co (Aust) Unit Trust (ABN 12 651 422 950) established 29 June 1998 (the Unit Trust and Trust Property).

2.    The Liquidators, as the receivers of the Trust Property, shall have the powers to deal with the Trust Property provided to a receiver of a corporation under section 420 of the Corporations Act 2001 (Cth) (Corporations Act), as if “the corporation” were a reference to the Unit Trust.

3.    Pursuant to rule 1.34 of the Rules, the requirement for the Liquidators to file a guarantee under rules 14.21 and 14.22 of the Rules be dispensed with.

4.    Pursuant to section 90-15 of the Insolvency Practice Schedule (Corporations) being Schedule 2 to the Corporations Act (IPS), the Liquidators’ remuneration, costs, and disbursements (including legal costs) of the application be costs in the winding up of the second plaintiff (Company) and may be paid from the Trust Property.

5.    Within 5 business days after the making of these orders, the Liquidators give notice of the orders to the Australian Securities and Investments Commission and the known creditors of the Company, beneficiaries and unit holders of the Unit Trust (including all persons claiming to be a creditor of the Company and/or the Unit Trust) by means of a circular, to be provided by email (if practicable) or alternatively by post.

6.    There be liberty to apply to any person who can demonstrate sufficient interest to modify any directions, orders and/or declarations made pursuant to this order on not less than 72 hours’ written notice to the Liquidators.

7.    Subject to Order 8, pursuant to section 90-15 of the IPS, the Liquidators are justified and acting reasonably in proceeding on the basis that:

(a)    all assets of the Company are properly characterised as property held by the Company in its capacity as trustee of the Unit Trust;

(b)    all of the debts and claims which are provable in the liquidation of the Company were incurred as trustee of the Unit Trust;

(c)    that the Company has, in accordance with clause 50 of the Trust Deed, a right of indemnity from the Trust Property for debts and claims provable in the liquidation of the Company;

(d)    the Liquidators’ distribution (if any) of the Trust Property is governed by Part 5.6 of the Corporations Act;

(e)    the Liquidators are entitled to be paid their remuneration as approved pursuant to section 60-10 of the IPS, and expenses in respect of the liquidation of the Company, from the Trust Property (Remuneration and Expenses); and

(f)    the Liquidators are entitled to be indemnified out of and have an equitable lien over the Trust Property for all Remuneration and Expenses.

8.    Nothing in Order 7 shall relieve the Liquidators from any liability they may have for the sale of the perishable stock (as referred to in paragraph 30 of the Affidavit of Bruno Anthony Robert Secatore made 21 May 2026).

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

INTRODUCTION

1    The Company, Fresh Cheese Co (Aust) Pty Ltd was incorporated on 18 March 1998 (albeit originally under another name). The Company changed its name on 24 June 1998, to its current name. On 26 June 1998 a Unit Trust, being the Fresh Cheese Co (Aust) Unit Trust was established by deed. The Company is the trustee of the Unit Trust. The liquidators have formed the view that the unit holders of the Unit Trust are each an associated entity with the directors of the Company.

2    On 25 March 2026, pursuant to a special resolution of the shareholders of the Company, it was resolved to wind up the Company and appoint Mr Bruno Anthony Robert Secatore and Mr Glenn John Spooner as joint and several liquidators of the Company (the Liquidators).

3    By this Application, the Liquidators seek to be appointed as receivers of Trust Property, so that they might carry on the liquidation of the Company, complete a sale of the Company’s business and regularise some earlier transactions that exceeded the Liquidators’ powers. The Liquidators seek these orders nunc pro tunc, that is effectively for retrospective relief so that the orders appointing the Liquidators as Receivers would take effect from the date of their appointment as Liquidators (being 25 March 2026). This Application has been brought on urgently, as the Liquidators are unable to complete the sale unless or until they obtain the relief sought. Furthermore, the relief is necessary nunc pro tunc as perishable stock has already been sold.

4    The Liquidators rely on two affidavits of Mr Secatore and an affidavit of Ms Gordon, solicitor for the Liquidators. The first affidavit of Mr Secatore is a detailed affidavit which was filed with the Application. The second affidavit of Mr Secatore was to answer queries that arose at the hearing on 28 May 2026 and to provide further evidence in relation to that issue and a further issue which arose regarding a motor vehicle, to which I will return.

5    The matter was stood over from the hearing on 28 May 2026 until the afternoon of 29 May 2026, to deal with these issues that arose during the hearing. The matter was listed in the Duty List and there was an efficiency in the same Judge being able to continue to deal with it, rather than adjourn it to the next week (and hence have it listed before a different Duty Judge). The Liquidators were able to promptly provide further evidence which has allowed this hearing to continue and be dealt with.

6    Notice of this Application has been given to the Australian Securities and Investment Commission (ASIC), unit holders of the Unit Trust and to creditors by way of a circular to creditors dated 20 May 2026.

7    The Liquidators have not received any opposition to this Application. However, the Liquidators quite properly recognise that the time given for any response has been short. The Liquidators propose that to ensure that any relevant person with sufficient interest who wants to be heard be given liberty to apply in the orders. This is to ensure that after being served with a copy of these orders, given that this has proceeded on an urgent basis, any such interested person could apply to be heard by the Court. This is appropriate in the circumstances.

RELEVANT PRINCIPLES – aPPOINTMENT OF lIQUIDATORS AS rECEIVERS

8    The general position is that the Court should abstain from making an order nunc pro tunc where the making of an order would interfere with a substantive right: see Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551; [2017] HCA 54 at [49] (Kiefel CJ, Keane, Nettle and Edelman JJ), also see Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd (2020) 276 FCR 172; [2020] FCAFC 81 (Flick J [16], Bromberg J [56], and Anastassiou J reaching the same conclusion [83]).

9    The Full Court Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) (2018) 260 FCR 310; [2018] FCAFC 40 (Allsop CJ, Siopis and Farrell JJ) stated that the Court can make an order nunc pro tunc to appoint a liquidator as a receiver to authorise the sale of trust assets that has already occurred: Jones v Matrix (Allsop CJ [91], Siopis J [152], Farrell J [198]).

10    The application for the appointment of liquidators as receivers of trust assets is made pursuant to s 57 of the Federal Court of Australia Act 1976 (Cth). Section 57(1) relevantly provides that:

The Court may, at any stage of a proceeding on such terms and conditions as the Court thinks fit, appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient so to do.

11    The principles relevant to the appointment of liquidators of trust companies as receivers are relatively well settled. I gratefully adopt the often-cited observations of Moshinsky J in Re Cremin, Brimson Pty Ltd (in liq) (2019) 136 ACSR 649; [2019] FCA 1023 at 655–656 [48]–[51] as follows:

Applicable principles

[48]    A company that is the trustee of a trading trust has a right of indemnity to resort to the trust assets to vindicate its right to be exonerated from a liability that it has incurred in the course of carrying out trust business. In circumstances where such a company goes into liquidation, its right of indemnity and accompanying equitable lien over the trust assets endures, notwithstanding that the company has been removed as trustee of the trust and only holds the trust assets as a bare trustee: see Jones (as liquidator of Killarnee Civil & Concrete Contractors Pty Ltd (in liq)) v Matrix Partners Pty Ltd (2018) 260 FCR 310; 354 ALR 436; 124 ACSR 568; [2018] FCAFC 40 ( Jones v Matrix ) at [85], [142], [198].

[49]    There has, until recently, been a difference of opinion as to whether, in such circumstances, the liquidator’s power to sell the “property of the company” in s 477(2)(c) of the Corporations Act permits him or her to sell trust assets: see Re Aced Kang Investments Pty Ltd (in liq) [2017] FCA 476 at [12] . It is now settled that the liquidator of an insolvent (former) corporate trustee cannot sell the trust’s property without order of the Court, or by appointment of a receiver over the trust assets: see Jones v Matrix at [44] per Allsop CJ (Farrell J agreeing at [196]); Re Stansfield DIY Wealth Pty Ltd (in liq) (2014) 103 ACSR 401; 291 FLR 17; [2014] NSWSC 1484 at [10]; Apostolou v VA Corporation of Aust Pty Ltd [2011] FCAFC 103 at [45]. The rationale for this position is that, on a proper understanding, the trust assets are not the “property of the company”, but are instead trust property in which the corporate trustee has a proprietary interest by way of lien or charge to secure its right of exoneration: see Jones v Matrix at [89] . Thus, to the extent that the subject of a sale is the whole of a trust asset, rather than merely the company’s lien or charge in respect of that asset, it is not authorised by the power of sale in s 477(2)(c).

[50]    The courts are generally willing, upon an appropriate application, to make orders permitting the liquidator of a (former) corporate trustee to sell trust assets. In situations where the property of the trust will be exhausted following its sale and subsequent distribution to creditors, it may be appropriate merely to give the liquidator a power of sale: see Jones v Matrix at [91]. The more common course is, however, for the liquidator of the insolvent (former) corporate trustee to apply to be appointed a receiver for the purpose of selling the trust assets and distributing the proceeds among trust creditors: see Jones v Matrix at [142] per Siopis J; Amirbeaggi (as liquidator of Simpkiss Pty Ltd (in liq)) v Simpkiss Pty Ltd (in liq) [2018] FCA 2121 (Amirbeaggi); Taylor (in his capacity as CJ & KL Bond Super Pty Ltd (in liq)) v CJ & KL Bond Pty Ltd (in liq) (as trustee for the CJ & KL Bond Superannuation Fund) [2018] FCA 1430 ( Taylor v CJ & KL Bond Super Pty Ltd ); Staatz (as liquidator of Wollumbin Horizons Pty Ltd (in liq) v Berry (No 3) [2019] FCA 924 . Orders appointing a liquidator as a receiver for this purpose may be made nunc pro tunc to authorise sales of trust assets that have already occurred: Jones v Matrix at [91], [152], [198].

[51]    The proceeds from an exercise of a corporate trustee’s right of exoneration may only be applied in satisfaction of the trust liabilities to which that right relates: see Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 368 ALR 390; [2019] HCA 20 (Carter Holt) at [40] per Kiefel CJ, Keane and Edelman JJ; at [92] per Bell, Gageler and Nettle JJ; at [106] per Gordon J. Thus, the liquidator of a (former) corporate trustee may only apply the proceeds of a sale of trust assets to satisfy debts owed to trust creditors (as opposed to general creditors). This includes the costs of the liquidation (including the liquidator’s remuneration) because such costs constitute debts incurred by the company in discharging the duties imposed by the trust: Re Suco Gold Pty Ltd (in liq) (1983) 33 SASR 99 at 1107; ACLR 873 at 883 per King CJ; Jones v Matrix at [105]–[106]. In circumstances where a company has only ever acted as a trustee of one trust and that has been the totality of its affairs, no issue arises as to the application of trust assets to general creditors because all of the company’s creditors are trust creditors. In this situation, the proceeds from the exercise of the right of exoneration are to be distributed to the trust creditors in accordance with the order of priority prescribed by the Corporations Act: Jones v Matrix at [100]–[108] per Allsop CJ; see also Carter Holt at [93]–[96] per Bell, Gageler and Nettle JJ; at [111], [156]–[158] per Gordon J.

12    Therefore, applying these principles, the following issues need to be considered:

(1)    Does the Company only act in a trustee capacity?

(2)    Are the relevant assets, “property of the company” or trust assets?

(3)    Should the Liquidators be appointed as Receivers?

There are sub-issues which need to be considered under this heading. They are:

(a)    The PPSA interests;

(b)    Perishable stock already sold;

(c)    Any other sale contracts entered (motor vehicle); and

(d)    Should the order be made without security.

(4)    Whether orders should be made relating to s 477(2) and s 568 of the Corporations Act 2001 (Cth) (as were originally sought by the Liquidators).

(1)    Does the Company only act in a trustee capacity?

13    Pursuant to the Unit Trust Deed dated 26 June 1998, the Company was named as the trustee. As such, it is clear that the Company does act in a trustee capacity, as trustee of the Unit Trust.

14    The Liquidators have conducted various investigations into the affairs and operation of the Company, including (as deposed to by Mr Secatore):

29.    Since the Appointment Date, my staff and I have conducted various investigations into the affairs and operation of the Company, including:

(a)    interviews and discussions with the Directors;

(b)    taking control of the assets of the Company and the Trust;

(c)    collecting, collating and reviewing the Company’s books and records;

(d)    causing a search of the Personal Properties Securities Register (PPSR) to be conducted to ascertain what security interests are registered over the assets of the company and the Trust;

(e)    commencing the assessment of security interests and claims made by PPSR creditors;

(f)    liaised with certain secured creditors in relation to the return of stock and other secured assets;

(g)    engaging Dominion Group Auctions to value the Company’s assets;

(h)    commenced an expression of interest campaign in relation to the sale of the Company’s business and assets including preparation advertisements and an information memorandum;

(i)    liaising with interested parties in relation to the potential sale of assets;

(j)    monitoring the collection of debtors (which occurred through Provedore);

(k)    realised some of the stock remaining in the Company’s possession;

(l)    corresponding with:

i.    the creditors of the Company to advise of our appointment;

ii.     the Company’s secured creditors, including the National Australia Bank (NAB);

(m)    conducting investigations into the Company’s affairs, including but not limited to its assets, liabilities, financial position and potential voidable transaction / insolvent trading claims;

(n)    liaising with our solicitors in relation to the liquidation of the Company;

(o)    attending to employee matters, including reviewing and assessing outstanding employee entitlements and liaising with the Fair Entitlements Guarantee (FEG) scheme;

(p)    attending to lodging statutory notices with ASIC; and

(q)     preliminary consideration of matters that may require further investigation and for reporting to creditors,

(collectively, the Investigations).

15    Also on 25 March 2026, the Liquidators were appointed as liquidators of Montana Foods Pty Ltd and to Provedore Group Pty Ltd. The Company holds 100% of the shares issued in Montana Foods and 99.5% of the shares issued in Provedore. The Company manufactured cheese products. Montana Foods manufactured products other than cheese, being yoghurt, sauces, dips and salsa. Provedore acted as a sales, marketing and administration entity for both the Company and Montana Foods. Generally, the Company did not sell its products directly to consumers. Instead, it invoiced Provedore who then on-sold products to consumers.

16    From the Investigations, the Liquidators have identified the following matters which support the view that the Company only acts as the trustee of the Unit Trust:

(a)    Although the Company is the trustee of the Unit Trust, pursuant to the Trust Deed, it also does allow for a replacement trustee, however, the Liquidators (who have access to the books and records of the Company) are not aware of any replacement trustee being appointed;

(b)    The Unit Trust had its own ABN. That is, the Unit Trust was registered for GST;

(c)    The Company did not have its own ABN and hence was not registered for GST;

(d)    The operative bank account with National Australia Bank records the account details as “Fresh Cheese Co (Aust) Pty Ltd ATF the Fresh Cheese Co (Aust) Unit Trust”;

(e)    The Liquidators, again, who have access to the books and records for the Company, have only identified financial statements prepared for the Company in its capacity as trustee of the Unit Trust. Those financials are entitled “Special Purpose Financial Statements Fresh Cheese Co (Aust) Unit Trust ABN 12 651 422 950”. This is the ABN for the Unit Trust;

(f)    the Company lodged tax returns only as trustee of the Unit Trust; and

(g)    the Company lodged BAS as trustee of the Unit Trust, and paid wages and PAYG from the Unit Trust’s bank accounts.

17    The Liquidators also describe the Company’s business dealings with suppliers and customers as follows. Two credit applications have been identified with suppliers which have been entered into by the Company, but without reference to the Unit Trust. One of these agreements refers to the Unit Trust’s ABN but is executed by the Company without reference to its capacity as trustee. The other does not reference the Unit Trust’s ABN but does reference a business name “Mamma Lucia Cheese” which is a business name registered in the Company’s name but owned by the Unit Trust.

18    Almost without exception, the Company sold its products to Provedore and Montana Foods. Then those entities on-sold the products direct to customers. Those invoices are issued in the name of the Company without a reference to the Company being the trustee of the Unit Trust. However, the Unit Trust’s ABN is stated on those invoices. There are a small number of invoices issued to customers which also are in the name of the Company without a reference to the Company being the trustee of the Unit Trust. However, again, the Unit Trust’s ABN is stated on those invoices.

19    In these circumstances, the Liquidators make these observations regarding the business dealings with suppliers and customers:

(a)    The amounts paid by customers were paid into the operating bank account in the name of the Unit Trust;

(b)    The ABN listed on all invoices was the ABN of the Unit Trust; and

(c)    The financial statements for the Unit Trust (noting that there are no separate financials for the Company) show all of the trading income was treated as trading income of the Unit Trust.

20    However, the Liquidators have quite properly identified the following matters which may support the position that the Company did operate in its own right, and not only as the trustee of the Unit Trust.

(a)    Mr Secatore gives evidence that the motor vehicles are registered in the name of the Company, and the registration does not state that it is the Company in its trustee capacity. However, Mr Secatore also notes that in his opinion, the motor vehicles were assets of the Unit Trust and, as they were purchased after the trust was established, the business was conducted by the Company solely in its capacity as trustee. All of the business funds were assets of the Unit Trust, and the Company in its own right did not have sufficient funds to purchase the motor vehicles. The Unit Trust financial statements list motor vehicles as an asset.

(b)    In relation to trademarks, these appear to be registered in the name of the Company. However, again, Mr Secatore has formed the view that the trademarks are likely to be assets of the Unit Trust because all the trademarks were registered after the Unit Trust was established. The business was conducted by the Company in its capacity as trustee. The trademarks relate to the operation of that business. And the Unit Trust financial statements list patents and trademarks as assets.

(c)    The Liquidators also give evidence relating to a hire contract for a vacuum packer, which only refers to the Company. However, Mr Secatore has formed the view that the plant and equipment are likely to be assets of the Unit Trust for similar reasons that were identified in relation to the motor vehicles and the intellectual property. In addition to those reasons, it is observed that the hire fees were paid by the Company in its capacity as trustee.

(d)    Of the 32 registrations on the personal property securities register, it is noted that some are only registered against the Company by identification of its ACN. However, Mr Secatore gives evidence in relation to a breakdown of those PPSR registrations and ultimately concludes that they all relate to the Unit Trust.

(e)    The lease of the premises from which the business is operated is executed by the Company and it contains no reference to the Unit Trust or the Unit Trust’s ABN. Again, for similar reasons, Mr Secatore has formed the view that the lease relates to the Unit Trust, because it was paying the rent from Trust Property and it benefited from the lease agreement, particularly by way of conducting the business from those leased premises.

21    On this basis the Liquidators are of the view that the Company only acted and operated as the trustee of the Unit Trust. I agree.

22    Although there are some inconsistencies in the records and dealings that the Liquidators have access to and have properly put before the Court, the better view is that the Company only acted in a trustee capacity of the Unit Trust. This is because, amongst other matters, the Company changed its name just two days before being appointed trustee, only the Unit Trust has an ABN, has financial statements prepared, lodges tax returns and business activity statements, and the main operations are from a bank account in the name of the Unit Trust.

23    As such, the weight of the evidence supports the position that the Company only acted as and in the capacity as trustee of the Unit Trust. Therefore, the Company as the trustee of the Unit Trust, which is a trading trust has a right of indemnity to resort to the trust assets to vindicate its right to be exonerated from a liability that it has incurred in the course of carrying out trust business: see clause 50 of the Trust Deed and Re Cremin at [48].

(2)    Are the assets “property of the company” or trust assets?

24    As the Company only acted as a trustee company, all of the assets it held would be held in its capacity as trustee of the Unit Trust.

25    All of the assets are recorded in the financial statements of the Unit Trust. Therefore, the Liquidators are not seeking to sell or deal with the “property of the company”, as the trust assets are not properly “property of the company”. The trust assets are instead trust property (not property of the Company) in which the corporate trustee has a proprietary interest by way of lien or charge to secure its right of exoneration: Re Cremin at [49].

26    Therefore, to the extent that the subject of a sale is the whole of a trust asset, rather than merely the Company’s lien or charge in respect of that asset, it is not authorised by the power of sale in s 477(2)(c) of the Corporations Act: Re Cremin at [49]. So although all of the assets are trust assets, as matters presently stand, the Liquidators are not authorised to sell any of those assets. Of course, the Liquidators recognise this by bringing this application.

(3)    Should the Liquidators be appointed as Receivers?

27    The appointment of Liquidators as receivers and managers of trust property is commonplace whereas here, the Company acts as a bare trustee in consequence of its removal as the trustee of the Unit Trust pursuant to the relevant clauses of the Trust Deed.  The usual justification for such an order is to permit an orderly realisation of the assets, a simplification of the liquidation, the identification of creditor claims against the trustee and satisfaction of the trustee’s right of exoneration. This can also include orders being made nunc pro tunc to authorise the sale of trust assets that have already occurred: Re Cremin at [50].

28    It is commonplace for the liquidator of the insolvent corporate trustee to be appointed as a receiver for the purpose of selling the trust assets and then to apply those proceeds among trust creditors. It is those principles which the Liquidators seek to apply, in this case. It is obvious that the Liquidators must sell the assets of the Unit Trust to meet the claims of the trust creditors. Such claims would also be the Company’s liabilities being incurred in the course of the performance of its trust duties.

29    By reason of its removal as trustee, the Company has no right which might now be exercised to sell the assets of the Unit Trust. For that reason, the appointment of Mr Secatore and Mr Spooner as Receivers is necessary to facilitate the completion of the liquidation.

30    It is necessary to consider the sub-issues.

(a) The PPSA interests

31    Mr Secatore has identified 32 security interests, at least two of which are registered over all present and after acquired property of the Company. Those security interests would have had a security interest over the perishable assets, being the stock which has already been sold. The Liquidators have explained that they sought to protect the interests of all parties, unsecured and secured creditors, by turning those perishable assets into cash. Then the Liquidators propose to subsequently deal with the trust property now in a different nature, being cash rather than perishable goods, to ascertain the rights and interests of the relevant parties in relation to those assets.

32    At the time of the sale, as is apparent from the material, it was unclear to the Liquidators whether the Company only acted in a trustee capacity or otherwise. Although it might be, in some circumstances, possible and perhaps even preferable for liquidators to make very urgent applications to the Court to seek orders in selling perishable items before those sales take place (see, for example Holland in the matter of BCN Culinary Arts Pty Ltd in liquidation [2024] FCA 752 (Derrington J)), it can readily be accepted that that is not always possible, depending on the particular circumstances of a case.

33    The Liquidators were in a position where it would be necessary to sell perishable stock assets in a limited time. It is clear from the material referred to by the Liquidators that there is at least potentially inconsistent evidence as to how the operations of the business were conducted. There are some documents which refer to the Company in its own right and some documents which refer to the Company in its trustee capacity. Further some documents only refer to the Company but then contain a reference to the Unit Trust’s ABN. Such a situation was likely to require investigation which would take some time. That time, of course, is limited when assets in the nature of perishable stock have to be sold promptly.

34    Those matters would have impacted upon the Liquidators’ consideration of the sale of that stock, even noting they were subject to the all present and acquired security interests of the Company. In one sense, the Company still has assets, which would be the subject of the charge. It is simply the nature of the assets which have changed. The assets are no longer perishable stock but are now in the form of cash.

35    In that regard, I do not see the PPSA interests as weighing against granting the orders sought by the Liquidators.

(b)    the perishable stock already sold

36    The nature of the perishable stock already sold and the proper ownership characterisation of such assets was clearly a matter which required detailed investigation by the Liquidators. Many of the observations made in relation to the PPSR interests are relevant here as well.

37    The material which is available to the Liquidators, as to the ownership of various assets is not clear. The Liquidators acting reasonably have sold the perishable stock and turned it into cash. In the second affidavit of Mr Secatore it is explained in detail how that has occurred and where the funds are being held. The funds have not been paid across to the administration account held by the Liquidators for the Company. However, it is apparent that an appropriate notation of the amount is recorded. The funds are still being held by the Liquidators, and the only reason it has not yet been transferred was said to be for a matter of efficiency.

38    During the course of the hearing, the Court did raise with Counsel as to whether the orders sought in relation to the perishable stock only sought the retrospective relief to ensure an authorisation of the transactions, that is to regularise those dealings, or, in addition to that, was judicial advice also being sought in relation to those transactions to expunge any potential liability which might flow from the Liquidators taking the course that they did.

39    Counsel for the Liquidators quite properly recognised the distinction and submitted that it was only the former that was being sought; that is that the Liquidators be appointed Receivers from 25 March 2026 to ensure that the sales were properly authorised at the time the sales were undertaken. It was submitted, and I accept, that it was reasonable in the circumstances for the Liquidators to act as they did. However, it is not possible on the material filed and nor is it sought, as was clarified by Counsel, in this application for orders providing judicial advice that the Liquidators were justified in selling the stock (for the price they did) at that time.

(c)    Any other sales contracts entered

40    In the second affidavit of Mr Secatore a contract of sale in relation to a particular motor vehicle is detailed. Mr Secatore gives evidence that this contract is conditional on this application to the Court being granted; that is, if the Orders sought are not made by the Court, then the sale contract would come to an end. Mr Secatore gives evidence that he is aware of the obligation that the Company would be unable to sell assets of the trust absent orders from the Court, but that, given the conditional nature of this contract in relation to the motor vehicle, he considered that would be authorised.

41    Bond J in Re Octavia Limited [2020] QSC 353 at [75]-[77] deals with the proposition of the Court not retrospectively giving advice for a particular contract, in that case a settlement deed to be entered. However, as his Honour discussed, if such a contract was entered with the effect of a condition precedent, then it was capable of still being the subject of judicial advice. Although this contract is not the subject of seeking judicial advice, the principle is still applicable. As such, that is no impediment to the orders that are sought by the Liquidators in this case, being conditional on the Orders being made.

(d)    Without security

42    The Liquidators seek to be appointed as Receivers without the need to provide security, which is a departure from the general rules and the rules of this Court.

43    However, it is often the case that no security is required in circumstances such as the present. The Liquidators are from a reputable firm, SSB Advisory, and are and will act as officers of the Court in the conduct of their duties.

44    Therefore, the Court can have confidence that no security is required in this case.

Conclusion - the Liquidators should be appointed as Receivers

45    For all of the reasons given above, Mr Secatore and Mr Spooner are the appropriate persons to be appointed as the Receivers. They have control of the Company. They have already conducted the detailed Investigations and are aware of the Company’s financial circumstances such that it is a cost-effective position that they be appointed as Receivers.

46    Further, it is necessary for Mr Secatore and Mr Spooner to be appointed as Receivers as the Company only acts in a trustee capacity of the Unit Trust. All of the assets that are held are trust assets and are not property of the Company. As such, at present, the Liquidators are not authorised to sell the assets of the Unit Trust.

47    In all of those circumstances, it is appropriate that Mr Secatore and Mr Spooner are appointed as Receivers.

(4)    Should orders be made in relation to s 477(2) and s 568 of the Corporations Act?

48    The orders sought by the Liquidators include that they have power to deal with the trust property as provided by s 420 of the Corporations Act. In addition to those powers, the Liquidators also seek for the powers under s 477(2) and s 568 of the Corporations Act.

49    The powers of a Receiver under s 420 of the Corporations Act are considerable. There is significant overlap in the powers under s 420 of the Corporations Act and those under s 477(2).

50    Counsel for the Liquidators could not identify a particular power which might be necessary in the context of these proceedings under s 477(2) of the Corporations Act. It was quite properly accepted that it was more sought by way of prudence to try and avoid further applications should such a power be required.

51    In the context of making an order for the powers to be provided under s 477(2), I am not satisfied that as the matters currently stand, it is appropriate to make such an order. The Court does not engage in or provide orders and powers on the possibility that such matters might become relevant. At this stage no relevant power provided by s 477(2) could be identified as being necessary. As already observed, the powers in s 420 of the Corporations Act are considerable, and it is likely that that will be sufficient for the Liquidators in the context of this case to conduct their duties.

52    In relation to the powers under s 568 of the Corporations Act, regarding onerous property, Counsel for the Liquidators helpfully referred the Court to a decision of Banks-Smith J in Mohen, a liquidator, in the matter of Willco Breads Pty Ltd (in liquidation) [2019] FCA 1539 where her Honour observed that a particular item of property by way of a vehicle had been identified as being subject to a security for a debt that exceeded its forced liquidation value. Her Honour then concluded at [23] that in those circumstances and given the specific identification of an item of property to which the power to disclaim under s 568(1) would be used, it was appropriate to make such an order and give the Liquidators in that case, those additional powers.

53    However, no such item of property was identified in this case. That distinguishes it from the circumstances before Banks-Smith J, and as such, I am not satisfied that powers under s 568 of the Corporations Act should be granted to the Liquidators, on this application.

Conclusion

54    For the above reasons, this is an appropriate matter where the Liquidators should be appointed Receivers. Those orders should be made nunc pro tunc from 25 March 2026. Finally, as was submitted by Counsel for the Liquidators, orders will also be made, that these orders (not being orders for judicial advice) would not relieve any liability they may have for the sale of the perishable stock.

Associate:    

Dated:    20 July 2026