Emerson Lewis Lawyers acted on behalf of the liquidators of Westown Nominees Pty Ltd in their application to be appointed as receivers and managers of the property of the Westown Superannuation Fund and any other property held on trust by Westown Nominees.
Westown Nominees Pty Ltd was registered in 2001 for the sole purpose of acting as trustee for the Westown Superannuation Fund (WSF), which was akin to a trust. On 9 January 2023, liquidators were appointed to Westown Nominees Pty Ltd by way of a resolution of members. Whilst performing their duties as liquidators of the company, the liquidators discovered that the superannuation fund held assets totalling $97,000.00, but liabilities in excess of $400,000.00.
Issues and Approach
Chiefly of concern was the liquidators’ abilities to repay the debts owed to the company’s creditors. As Westown Nominees had never traded in its own right, the company held no assets other than those held on trust for the superannuation fund. Should the liquidators wish to repay the company’s creditors at all, they would be required to access the assets of the superannuation fund.
Our office stepped through and advised the liquidators of the complex issues surrounding access to the superannuation fund. In particular, Emerson Lewis Lawyers provided advice on the interplay between relevant provisions in the Corporations Act 2001 (Cth) and the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) which meant that upon the appointment of liquidators, Westown Nominees was henceforth a ‘disqualified person’, and no longer trustee of the Westown Superannuation Fund. Our detailed yet straightforward advice prevented the liquidators of Westown Nominees from becoming implicated as accessories to a serious offence under s 126K of the SIS Act should they deal with the superannuation fund assets in their capacity as liquidators of a now-disqualified person.
In overcoming this issue we advised the liquidators to make an application to the Court (and ultimately assisted in making such an application) to:
- seek orders pursuant to s 57 of the Federal Court of Australia Act 1976 (Cth) that the liquidators be appointed as receiver and manager of the superannuation fund property;
- seek an order that the liquidators, as receivers and managers, have the powers necessary to deal with the property of the superannuation fund; and
- seek an order that the liquidators’ expenses and renumeration in acting in their capacity as liquidators of Westown Nominees and receivers and managers of the Westown Superannuation Fund be paid from the trust property.
Following a Federal Court hearing, the Court made orders which mirrored exactly those that were sought by the liquidators above. During the hearing, Emerson Lewis Lawyers was highly commended by Markovic J for the detail of the application and the orders sought. Her Honour found no fault whatsoever the work by our solicitors, to the effect that she found it completely unnecessary to produce a written judgment. Emerson Lewis Lawyers went above and beyond to achieve judgment which exactly met our clients needs, in a straightforward, cost-effective and timely manner.