RE PLANOVATORS PTY LTD (IN LIQUIDATION); EX PARTE RE MERVYN JONATHAN KITAY AS LIQUIDATOR OF PLANOVATORS PTY LTD (IN LIQUIDATION) [2026] WASC 291

[2026] WASC 291 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE PLANOVATORS PTY LTD (IN LIQUIDATION); EX PARTE RE MERVYN JONATHAN KITAY AS LIQUIDATOR OF PLANOVATORS PTY LTD (IN LIQUIDATION) [2026] WASC 291 CORAM : HILL J HEARD : 26 JUNE 2026 DELIVERED : 26 JUNE 2026 PUBLISHED : 21 JULY 2026 FILE NO/S : COR 85 of 2026 MATTER : IN THE MATTER OF PLANOVATORS PTY LTD (IN LIQUIDATION) EX PARTE MERVYN JONATHAN KITAY AS LIQUIDATOR OF PLANOVATORS PTY LTD (IN LIQUIDATION) Plaintiff Catchwords: Corporations - Winding up - Where company in liquidation was trustee of trust - Application for appointment of liquidator as receiver and manager of company trust property - Application for directions - Turns on own facts Legislation: Corporations Act 2001 (Cth) sch 2 s 90-15, 90-20 -- 1 of 6 -- [2026] WASC 291 Page 2 Supreme Court Act 1935 (WA) s 25(9) Rules of the Supreme Court 1971 (WA) O 51 r 1 Result: Application granted Directions given Category: B Representation: Counsel: Plaintiff : Y Wu Solicitors: Plaintiff : Mendelawitz Morton Commercial Lawyers Cases referred to in decision: Caterpillar Financial Australia Limited v Ovens Nominees Pty Ltd [2011] FCA 677 Hercules Car Parking Systems (Victoria) Pty Ltd [2018] NSWSC 409 Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40 (2018) 260 FCR 310 -- 2 of 6 -- [2026] WASC 291 HILL J Page 3 HILL J: (This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.) 1 By amended originating process filed on 25 June 2026, the plaintiff, who is the liquidator of Planovators Pty Ltd (Company), seeks orders for his appointment as receiver and manager of the assets of the Planovators Unit Trust (Trust). 2 At the time the originating process was filed, a certificate of urgency was also filed stating the application was of such an urgent nature that it was required to be listed immediately. The basis of the urgency is that the plaintiff is in the process of negotiating a sale of the Company's business as a going concern and anticipates the proposed transaction may be capable of completion in early July 2026.1 Given this, the matter has been listed before me today on an urgent basis. 3 In support of the application, the plaintiff read two affidavits, being: (a) an affidavit of the plaintiff, Mr Kitay, filed 24 June 2026; and (b) an affidavit of Wahida Samin, a solicitor employed by the plaintiff's solicitors, filed on 25 June 2026. 4 On the basis of Ms Samim's affidavit, I am satisfied that notice of the hearing has been given to the Australian Securities and Investments Commission (ASIC) as required by the Supreme Court (Corporations) (WA) Rules 2004. Factual background 5 The Company was incorporated in October 2012. It traded under the name 'Burgess Design Group', operating a town planning consultancy business specialising in strategic and statutory planning, urban design, and land assembly.2 6 On 19 June 2026, by special resolution of the Company, Mr Kitay was appointed as liquidator.3 1 Affidavit of Mervyn Jonathan Kitay filed 24 June 2026 [21] - [22]. 2 Affidavit of Mervyn Jonathan Kitay filed 24 June 2026 [11]. 3 Affidavit of Mervyn Jonathan Kitay filed 24 June 2026 [7], 'MJK-1', 'MJK-2'. -- 3 of 6 -- [2026] WASC 291 HILL J Page 4 7 Based on his enquiries to date, Mr Kitay believes the Company was a trustee of the Trust, acted solely in its capacity as trustee of the Trust, and did not conduct any other activities in its own right or any other capacity.4 Should the plaintiff be appointed as receiver and manager of the Trust's assets? 8 The plaintiff seeks to be appointed as receiver and manager of the assets of the Trust without security and to be given the ability to exercise all of the powers of a receiver under s 420 of the Corporations Act 2001 (Cth) (Act). 9 Where a corporate trustee enters into external administration, the company's right of indemnity and accompanying equitable lien over the assets of the trust survives the appointment. Where a company has been removed as trustee of the trust by reason of the terms of the trust deed, the company retains the right to hold trust assets as bare trustee but does not have the power to sell those assets to satisfy that indemnity absent orders from the court.5 10 Pursuant to s 25(9) of the Supreme Court Act 1935 (WA), alternatively, O 51, r 1 of the Rules of the Supreme Court 1971 (WA), the court has the power to appoint a receiver where it appears to be just and convenient. Orders may be made nunc pro tunc to authorise any sale of assets that has already occurred.6 11 In the absence of any relevant conflict, it is commonly the case that the court will appoint the liquidator of the corporate trustee as receiver without security.7 12 On the evidence before me, I accept that by reason of cl 13.2 of the deed governing the Trust, on the appointment of Mr Kitay as liquidator, the Company was disqualified from acting as trustee of the Trust. As a consequence, the Company is now a bare trustee of the Trust's assets and does not have the power to sell or otherwise deal with the assets of the Trust. 4 Affidavit of Mervyn Jonathan Kitay filed 24 June 2026 [12]. 5 See Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40 (2018) 260 FCR 310 at [44], [85] - [91] (Allsop CJ), [139], [142] (Siopis J) and [198] (Farrell J); Caterpillar Financial Australia Limited v Ovens Nominees Pty Ltd [2011] FCA 677 at [22] - [28] (Gordon J). 6 Re Killarnee [91], [152], [198]. 7 Hercules Car Parking Systems (Victoria) Pty Ltd [2018] NSWSC 409 (Brereton J). -- 4 of 6 -- [2026] WASC 291 HILL J Page 5 13 I accept that the proposal to appoint Mr Kitay as receiver of the Trust's assets without security is in accordance with the legal principles that I have outlined and will protect the Company's right of indemnity, as well as the position of creditors. 14 In these circumstances, I consider there are advantages with the proposal that Mr Kitay, as liquidator of the Company, also be appointed as receiver of the Trust's assets. These advantages include that he is subject to the regulatory regime that applies to insolvency practitioners; he has professional indemnity insurance; and is also subject to the continued supervision of the court. 15 For these reasons, I accept it is appropriate to appoint Mr Kitay as receiver and manager of the Trust's assets. Should directions be made pursuant to s 90-15 and s 90-20? 16 Mr Kitay also seeks directions that he would be acting properly and is justified in proceeding to conduct the affairs of the Trust on the basis that the business and assets of the Company are comprised of the assets of that trust. 17 Pursuant to s 90-15(1) of the Insolvency Practice Schedule (IPS), the court may make 'such orders as it thinks fit in relation to the external administration of the company.' 18 On the basis of the financial statements annexed to Mr Kitay's affidavit,8 I accept that the Company has only carried on business in its capacity as trustee of the Trust. Given this, it is appropriate to make orders under s 90-15 and s 90-20 of the IPS that the plaintiff will be acting properly and is justified in proceeding to conduct the affairs of the trust on the basis that the business and assets of the Company comprise the assets of the Trust. Conclusion and orders 19 Mr Kitay also seeks an order that he is entitled to be paid reasonable remuneration out of the Trust property and for the costs of the application to be costs and expenses in the realisation of the assets of the Company and the Trust. Given his evidence that the Company only acted in its capacity as trustee of the Trust, I accept it is appropriate to make these orders. 8 Affidavit of Mervyn Jonathan Kitay filed 24 June 2026 [26] - [27], 'MJK-5'. -- 5 of 6 -- [2026] WASC 291 HILL J Page 6 20 I am also satisfied that the ancillary orders sought, which provide for notice of these orders to be given to creditors and to allow any interested party liberty to apply to vacate or vary the orders within 14 days, will protect any relevant person from any possible prejudice arising from this application. 21 For these reasons, I accept it is appropriate to make orders in terms of the minute of proposed orders. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. KS Associate to the Hon Justice Hill 21 JULY 2026 -- 6 of 6 --