BWD Trading Acct Pty Ltd v Bellamon Pty Ltd [2024] QSC 151

SUPREME COURT OF QUEENSLAND CITATION: BWD Trading Acct Pty Ltd v Bellamon Pty Ltd [2024] QSC 151 PARTIES: BWD TRADING ACCT PTY LTD (applicant) v BELLAMON PTY LTD ACN 134 854 032 (IN LIQUIDATION) (first respondent) v MP & ASSOCIATES (AUST) PTY LTD ACN 629 738 478 (second respondent) v MA MONEY FINANCIAL SERVICES PTY LTD (formerly MKM NEWCO PTY LTD) ACN 639 174 315 (third respondent) v JIM GEORGE KOUFOS (fourth respondent) v AUSTRALIAN SECURE CAPITAL FUND LIMITED ACN 613 497 635 (fifth respondent) FILE NO/S: 60 of 2024 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED EX TEMPORE ON: 17 May 2024 DELIVERED AT: Cairns HEARING DATE: 17 May 2024 JUDGE: Henry J ORDER: 1. Applicant has leave, nunc pro tunc, to begin and prosecute this proceedings as against the First Respondent. 2. Costs of today are reserved. -- 1 of 4 -- 2 3. The parties have liberty to apply on the giving of two business days’ notice in writing. 4. I order a transcript be obtained and placed on the Court file as a filed document. CATCHWORDS: CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – PROCEEDINGS BY OR AGAINST THE COMPANY – LEAVE TO PROCEED – WHETHER LEAVE IS REQUIRED – where land is owned by Bellamon Pty Ltd as trustee of the Bellamon Family Trust – where Bellamon’s only operating interest was as trustee holding the land – where the third and fourth respondent appear to be the first and second mortgagees – where Bellamon is in liquidation and the appointer under the trust entered bankruptcy – where appointer emerged from bankruptcy and appointed BWD Trading as the trustee of the Bellamon Family Trust – where BWD Trading ultimately seeks an order under s 82(2) Trusts Act to vest the land in it, on the conditions to protect financial players – where there is a threshold issue to obtaining that order – whether leave is required for the application to proceed as Bellamon is in liquidation Corporations Act (2001) (Cth) ss 9, 491, 495, 496, 497 Trusts Act 1973 (Cth) s 82 COUNSEL: M Jonsson KC for the applicant M Forrest (sol) for the first respondent S Claassen (sol) for the third respondent SOLICITORS: Linstell Lawyers for the applicant William James Lawyers for first respondent Dentons Australia Limited for third respondent [1] The ownership and creditors’ interests in a valuable block of land at Trinity Park are in quite a tangle. The land is owned by Bellamon Pty Ltd as trustee of the Bellamon Family Trust. It appears Bellamon’s only operating interest was as the trustee holding the land, a property over which the 3rd and 4 th respondents appear to be 1 st and 2 nd mortgagees. Bellamon appears to have other creditors. It is in liquidation. [2] The appointor under the trust, Mr Davison, entered bankruptcy about when Bellamon went into liquidation. There were then some curious dealings regarding a change in trustee, which may have been ineffectual. In any event, since emerging from bankruptcy, Mr Davison has now appointed BWD Trading as the new trustee of the Bellamon Family Trust. This appears to have been done in the hope of being able to disentangle the present mess and meet the associated financial obligations by selling the land, which appears materially more valuable, it is said, than the total various moneys owed. -- 2 of 4 -- 3 [3] To that end, BWD Trading seeks an order under s 82(2) Trusts Act, vesting the land in it, on conditions protecting the financial interests of the other players. There is, however, a threshold issue, namely, whether leave is required for the application to proceed, given Bellamon, a necessary respondent, is in liquidation. [4] Section 500(2) Corporations Act, requires “after the passing of the resolution for voluntary winding up” that the Court give leave for the commencement of a proceeding against the company in liquidation. It appears, here, that there was a resolution passed for voluntary winding up, so that prima facie s 500(2), applies. [5] However, BWD Trading submits s 500(2) has no application where the resolution relates to a creditor’s voluntary winding up. That submission must fail. [6] The determinative question is what is meant by the words “the resolution for voluntary winding up” in s 500. That is defined in s 9 by reference to the special resolution referred to in s 491, that is, per s 491, a special resolution which resolves to wind the company up. It is the special resolution of the company, not whether it is a member’s or a creditor’s voluntary winding up, which is the ingredient, or the element, to which s 491, and, thus, in turn, s 500 relates. [7] I am fortified in reaching that conclusion by the fact that s 491 appears within part 5.5, voluntary winding up, in division 1, Resolution for winding up. Division 2 then deals with Members’ voluntary winding ups, ss 495 to 496. Interestingly, division 3 then deals with Creditors’ voluntary winding ups from s 497 through to s 500AE. That is to say, s 500 actually falls within that division. So, contextually, that too would appear to support the conclusion I reach that leave is required. [8] As to whether leave should be granted nunc pro tunc, given in point of fact the proceedings have started, the character of the relief sought is a point of some significance. It has obvious appeal as a solution to the tangled circumstances of the case. [9] So far as the protection of the liquidator’s interests and responsibilities are concerned, the substantive application itself is unlikely to involve a hearing of more than an hour or so. Even if I am wrong and it is a couple of hours, it is well removed from litigation of a kind such as a long trial where the liquidator’s interests will be substantially interfered with unless there are protective conditions on the granting of leave. [10] I perceive the real need for protection, so far as the liquidator is concerned, really lies with the outcome of the substantive application rather than granting leave, in that the need for protection may readily be delivered, not by imposing conditions on the granting of leave but, should the substantive application succeed, by the imposition of appropriately protective conditions on any vesting order. [11] In that regard, I note that whether such an order ought be made is very likely to turn in the long run, on two largely pragmatic considerations. One is whether indeed the land really is worth materially more than the amount owed by the former trustee in liquidation, including the amounts the land secures. Two is whether conditions on such a vesting order can be crafted so as to adequately protect all interests, which, of course, include the liquidator’s interests in the proper administration of the liquidation and the protection of interests in connection therewith. Naturally, it would also -- 3 of 4 -- 4 include the protection of the interests of those other respondents with an active interest in the matter. [12] As to the first point, it appears very much a matter of fact that, ultimately, is unlikely to be particularly difficult to determine. Indeed, on conscientious preparation by the parties, they may well reach common ground about its range and, if they conclude there is indeed a comfortable gap, their approach may well involve a degree of compromise as to the second point, which is whether the orders can be crafted sufficiently protectively to safeguard the interests of those concerned. [13] In my view, it seems unlikely that the crafting of protective orders on vesting is going to be an insurmountable problem. Indeed, its terms may well be the subject of the parties’ negotiations and consent. In any event, all of this exposes sufficiently the underlying considerations in the substantive application, to the limited extent it relates to the wisdom of the grant of leave, as to support the conclusion I reach, that leave should be granted. [14] Accordingly, I order the applicant has leave, nunc pro tunc, to begin and prosecute this proceeding as against the first respondent. [15] We turn, next, to the substantive argument and whether it should be adjourned. Those who have listened to what I have just said might well have recognised a couple of comments and suggestions which, I should have thought, leaves room for talk between the parties. It is really all about the money. So I am not persuaded that the idea of the substantive hearing being adjourned to another date is problematic in light of that. I have to say my impression is that if the liquidator has not been in a position to prepare for the hearing today, I am not going to get any helpful submissions from the liquidator about the vesting orders. What form of orders they should be, particularly bearing in mind whether the form of orders can be protective enough, would be, itself, part of the substantive argument as to whether I make such orders. [16] So my inclination is to grant the foreshadowed adjournment sought by Mr Forrest unless either of the other parties wish to add any further submissions to that which has already been said so far today. … [17] The next order is: costs of today are reserved. … [18] The substantive hearing is adjourned for hearing to 10am on Friday, 12 July 2024. … [19] The parties have liberty to apply on the giving of two business days’ notice in writing. … [20] I order a transcript be obtained and placed on the Court file as a filed document. ______________________ -- 4 of 4 --