This case concerns an application seeking various declarations in relation to the applicant’s claimed office as trustee of a trust (“the Trust”) and as to ownership of certain property as trust property.
The question for determination is whether the relevant property was, at the time that the court ordered the winding up of the first respondent, owned by the first respondent or by the applicant as the claimed trustee of the Trust.
The second respondent, the liquidator of the first respondent, is without funds and indicated that he submits to the orders of the court, save as to costs. The second respondent sought to be excused but the court indicated that it would be assisted by the second respondent appearing with representation at the hearing.
Evidence was presented by the applicant in the form of minutes of meeting of directors of the first respondent which indicated that the directors resolved to cease operating and transfer all assets to the applicant in its capacity as trustee of the Trust: .
The court also noted the significance of evidence which indicated that an ABN for the Trust existed and was in existence prior to the winding up of the first respondent. Further, Business Activity Statements for the Trust were proven to have been lodged: .
The court found that the evidence points persuasively to the fact that the Trust was indeed in existence and trading prior to the date of the winding up of the first plaintiff and was prepared to find as such in the absence of any evidence to the contrary: .
The respondents also sought an order for costs. The applicant did not dispute that the respondents’ costs of preparing and filing the second respondent’s affidavit should be met but disputed payment of the second respondent’s costs for appearing at the hearing on the basis that the appearance was unnecessary: .
The court noted that it had requested that the second respondent be represented at the hearing in order to provide assistance in determining the matter. Further, the applicant was responsible for a delay in the hearing. The court determined to exercise its discretion to order the applicant to pay the respondents’ costs: .
Relevant paragraphs of Ford