Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella

[2009] NSWCA 129

NSW Court of Appeal

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Interrogate

Catchwords

1. Bankruptcy
2. › Trustees in bankruptcy
3. › Powers, duties, rights and liabilities
4. › Right of indemnity from trust fund
5. › Whether trustee in bankruptcy possessed right of indemnity for liabilities arising after date of sequestration orders
6. › Whether post-sequestration right of indemnity was after-acquired property
7. › Bankruptcy Act 1966 (Cth), ss 58(1), 58(6), 82
1. Trusts
2. › Trustees
3. › Right of indemnity
4. › Equitable lien over trust fund
5. › Whether trustee's lien extends to contingent and potential liabilities as well as actual debts
6. › Whether lien arises when trust-related liability is incurred
1. Bankruptcy
2. › Interest on trust moneys held by Official Trustee
3. › Whether trust fund owner entitled to interest at rate under Civil Procedure Act 2005 (NSW) s 100 in addition to interest under Bankruptcy Act 1966 (Cth) s 20J(4)
4. › Civil Procedure Act 2005 (NSW), s 100(3)(b)
5. › Bankruptcy Act 1966 (Cth), s 20J(4)
1. Practice and Procedure
2. › Costs
3. › Trustee basis
4. › Whether Official Trustee in Bankruptcy was party in capacity of trustee of trust
5. › Whether lien holder attracts trustee costs provision
6. › Uniform Civil Procedure Rules, r 42.25

Quick Take

A trustee in bankruptcy who holds trust funds does not acquire a right of indemnity for trust liabilities arising after the date of sequestration orders, and any such right is not after-acquired property under the Bankruptcy Act 1966 (Cth). The Official Trustee in Bankruptcy, when acting as a lien holder over trust funds rather than as trustee of the trust, is not entitled to costs on a trustee basis under r 42.25 UCPR. Interest on trust moneys held in the OT's Common Fund is payable under s 20J(4) of the Bankruptcy Act, and s 100(3)(b) of the Civil Procedure Act 2005 (NSW) precludes additional interest where interest is already payable as of right.