Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Aardwolf [2020] NSWSC 299. We will talk about a liquidator of a company who sought Court directions relating to a possible property sale.

In 2002, an ABN was obtained for Trust 1. It appeared there was no trust deed for Trust 1. In 2014, Trust 2 was settled. Our Co was trustee. Bank accounts were opened. High value transactions followed. In 2015, property was purchased in the name of the “the Co as trustee for Trust 1” i.e. the 2002 trust, not the 2014 trust: [7]. It appeared likely the money to fund the purchase came from the Co’s Trust 2 bank account. The Co kept inadequate financial records: [14]. It was unclear whether the Co bought the property in its own capacity, for Trust 1, or Trust 2: [15]. There was a chance of there being a trust deed for Trust 1 with an ipso facto clause; removing the Co in the case of a liquidator being appointed. With no deed found, it was appropriate for the Court to give directions to the liquidator: [20]. With no trust deed (and no ipso facto clause) the Co’s liquidation does not affect its trustee status: [23]. The Court worked through the evidence and declared the Co trustee of Trust 1, paving the way for a sale: [24], [25].