RE ROBERTS COLLINS INVESTMENT PTY LTD (IN LIQUIDATION); EX PARTE SMITH [2026] WASC 273

[2026] WASC 273 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE ROBERTS COLLINS INVESTMENT PTY LTD (IN LIQUIDATION); EX PARTE SMITH [2026] WASC 273 CORAM : HILL J HEARD : ON THE PAPERS DELIVERED : 3 JULY 2026 FILE NO/S : COR 75 of 2026 MATTER : IN THE MATTER OF ROBERTS COLLINS INVESTMENT PTY LTD (IN LIQUIDATION) IN ITS OWN CAPACITY AND AS TRUSTEE OF THE ROBERTS COLLINS INVESTMENT UNIT TRUST EX PARTE LINDA METHVEN SMITH AS JOINT AND SEVERAL LIQUIDATOR OF ROBERTS COLLINS INVESTMENT PTY LTD (IN LIQUIDATION) First Plaintiff ROBERT MICHAEL KIRMAN AS JOINT AND SEVERAL LIQUIDATOR OF ROBERTS COLLINS INVESTMENT PTY LTD (IN LIQUIDATION) Second Plaintiff ROBERTS COLLINS INVESTMENT PTY LTD (IN LIQUIDATION) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE ROBERTS COLLINS INVESTMENT UNIT TRUST Third Plaintiff -- 1 of 7 -- [2026] WASC 273 Page 2 Catchwords: Corporations - Winding up - Where company in liquidation was trustee of trust - Application for appointment of liquidator as receiver and manager of trust property - Turns on own facts Legislation: Corporations Act 2001 (Cth) sch 2 s 90-15 Rules of the Supreme Court 1971 (WA) O 51 r 1 Supreme Court Act 1935 (WA) s 25(9) Result: Application granted Category: B Representation: Counsel: First Plaintiff : K L Link Second Plaintiff : K L Link Third Plaintiff : K L Link Solicitors: First Plaintiff : Norton Rose Fulbright Australia Second Plaintiff : Norton Rose Fulbright Australia Third Plaintiff : Norton Rose Fulbright Australia Case(s) referred to in decision(s): Nil -- 2 of 7 -- [2026] WASC 273 HILL J Page 3 HILL J: 1 On 16 April 2026, the plaintiffs were appointed as liquidators of Roberts Collins Investment Pty Ltd (Company) pursuant to the orders of the Federal Court.1 2 By originating process dated 11 June 2026, the plaintiffs seek orders for their appointment as joint and several receivers and managers of the assets of the Roberts Collins Investment Unit Trust (Trust). 3 In support of the application, the plaintiffs rely on three affidavits, being: (a) an affidavit of the first plaintiff, Linda Methven Smith, filed 11 June 2026; and (b) two affidavits of Nicholas Robert White, a special counsel employed by the plaintiffs' solicitors, filed 22 and 26 June 2026. Factual background 4 The Company was incorporated in April 2023.2 The Company has two directors: Steven Michael Collins and Klint Malcolm Roberts. Mr Collins and Mr Roberts each own 50% of the issued shares of the Company. 5 The Trust was established in or around 2023 by a trust deed titled 'Roberts Collins Investment Unit Trust - Trust Deed' (Trust Deed), with the Company appointed as Trustee.3 Pursuant to cl 17.11(3) of the Trust Deed, on the appointment of a liquidator, the Company's appointment as trustee was automatically determined. There is no evidence that a replacement trustee has been appointed as trustee of the Trust. 6 There are two unitholders of the Trust: Klint Malcolm Roberts in his capacity as trustee of the Malcolm Roberts Holding Trust and Jeanette Laurel Collins in her capacity as trustee of the Nodnet Family Trust.4 7 The only assets of the Company are held by it as trustee of the Trust including two properties located in Baynton, Western Australia (Properties). Ms Smith's evidence is that the only business undertaken 1 Affidavit of Linda Methven Smith filed 11 June 2026 [24]. 2 Affidavit of Linda Methven Smith filed 11 June 2026 [8(a)]. 3 Affidavit of Linda Methven Smith filed 11 June 2026 [9], 'LMS-2'. 4 Affidavit of Linda Methven Smith filed 11 June 2026 [10(b)], [12(b)]. -- 3 of 7 -- [2026] WASC 273 HILL J Page 4 by the Company was to rent the Properties to a related entity to the Company, Robert Collins Group Pty Ltd. This was done by the Company in its capacity as trustee of the Trust.5 8 Based on their enquiries to date, including their review of the financial records of the Company, the plaintiffs believe:6 (a) the Company acted solely in its capacity as trustee of the Trust and prepared financial statements and tax returns only in that capacity; (b) the Company did not conduct any other activities in its own right or any other capacity; (c) the only liabilities incurred by the Company were incurred in its capacity as trustee of the Trust; and (d) there is likely to be sufficient assets to discharge all liabilities of the Trust and for the surplus to be paid to unitholders. Notice of the application 9 I am satisfied that the application has been served on Australian Securities and Investments Commission (ASIC) and that ASIC has not given notice that it intends to intervene in this application. 10 I am also satisfied that notice of the application has been given to the Trust's unit holders and National Australia Bank (NAB), the main creditor of the Trust. These interested parties have confirmed through their solicitors that they either consent or do not object to orders being made in the form sought by the plaintiffs. Should the plaintiffs be appointed as receivers and managers of the Trust's assets? 11 The plaintiffs seek to be appointed as receivers and managers of the assets of the Trust pursuant to s 25(9) of the Supreme Court Act 1935 (WA) and O 51 r 1 of the Rules of the Supreme Court 1971 (WA), and to be given the ability to exercise all the powers of receivers and managers under s 420 of the Corporations Act 2001 (Cth) (Act), as well as various other additional powers in respect of the Trust's assets. 5 Affidavit of Linda Methven Smith filed 11 June 2026 [16], [22(b)], [27(a)], [30]. 6 Affidavit of Linda Methven Smith filed 11 June 2026 [22(b)], [27(a)]. -- 4 of 7 -- [2026] WASC 273 HILL J Page 5 12 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 holds trust assets as bare trustee, but the liquidator of the company does not have the power to sell those assets to satisfy that indemnity in the absence of intervention by the court. 13 Pursuant to s 25(9) of the Supreme Court Act 1935 (WA), the court can appoint a receiver where it appears to be just and convenient. 14 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. 15 On the evidence before me, I accept that by reason of cl 17.11(3) of the Trust Deed, on the appointment of the plaintiffs as liquidators, the Company's appointment as trustee of the Trust was automatically terminated. 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. 16 I accept that the proposal to appoint the plaintiffs as receivers and managers of the Trust's assets is in accordance with the legal principles outlined above and will protect the trustee company's right of indemnity, as well as the position of creditors. I also consider there are other advantages with this proposal, including that the plaintiffs are subject to the regulatory regime applicable to insolvency practitioners, have professional indemnity insurance, and are subject to the continued supervision of the court. Should directions be made pursuant to s 90-15? 17 The plaintiffs also seek directions for the distribution of trust assets and that they are acting properly and are 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 the Trust. 18 Pursuant to s 90-15(1) of the IPS, the court may make 'such orders as it thinks fit in relation to the external administration of a company'. It is accepted by the courts that this power is broad and is at least as extensive as the powers that were formerly available under s 479(3) and s 511 of the Act. -- 5 of 7 -- [2026] WASC 273 HILL J Page 6 19 The principles which govern the exercise of the power under s 90- 15 can be briefly summarised as follows: (a) the power to give advice is intended to facilitate external administrators' performance of their functions, and should be interpreted widely to give effect to that purpose; (b) the court may give a direction where it is just and beneficial to do so; (c) the function of the power is to give an external administrator advice as to the proper course of action to take in the external administration; (d) the court will not give a direction as to a matter of commercial or business judgment. There must be a legal issue of substance or procedure, including an issue of power, propriety or reasonableness; and (e) the power would generally not be used to determine substantive rights, or make binding orders, although it is now possible to do so. 20 I accept, on the basis of the financial statements annexed to Ms Smith's affidavit, that the Company has only carried on business in its capacity as trustee of the Trust. For this reason, it is appropriate to make orders under s 90-15 that the plaintiffs will be acting properly and are 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. 21 I also accept, given the lapse between the time of their appointment as liquidators (and therefore the removal of the Company as Trustee) and the date of today's application, that there may be a question as to the power of the plaintiffs to have undertaken any acts since their appointment. In these circumstances, I consider it is appropriate to give a direction that any acts by the plaintiffs as liquidators of the Company are not invalid by reason of the Company's removal as trustee of the Trust. Should the ancillary orders ought by the plaintiffs be made? 22 The plaintiffs also seek an order that they are entitled to be paid reasonable renumeration out of Trust property, and for the costs of and incidental to the application be paid out of Trust property. Given -- 6 of 7 -- [2026] WASC 273 HILL J Page 7 Ms Smith's evidence that the Company only acted in its capacity as trustee of the Trust, I accept it is appropriate to make these orders. 23 I am satisfied that the ancillary orders sought, which require notice of these orders to be given to creditors and allow any interested party liberty to apply to vacate or vary the orders within three days, will protect any relevant person from any possible prejudice arising from the application. On this basis, it is appropriate for these orders to be made. Conclusion 24 For these reasons, I am satisfied that it is appropriate to make orders in terms of the plaintiffs' minute of proposed orders dated 23 June 2026. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. VA Associate to the Hon Justice Hill 3 JULY 2026 -- 7 of 7 --