Kordamentha Pty Ltd & Calibre Capital Ltd v LM Investment Management Ltd (in liq) & Anor; Park & Muller & Anor v Kordamentha Pty Ltd & Calibre Capital Ltd

[2015] QSC 4

Supreme Court of Queensland

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Interrogate

Catchwords

1. Equity
2. › Trusts and Trustees
3. › Applications to Court for Advice and Authority
4. › Petition or summons for advice
5. › Whether proceedings should be taken in the best interests of the trust estate
6. › Whether trustee should be directed to prosecute or defend proceedings
7. › Trusts Act 1973 (Qld), ss 96, 97
1. Equity
2. › Trusts and Trustees
3. › Applications to Court for Advice and Authority
4. › Procedural requirements
5. › Written statement of facts
6. › Whether affidavit material constitutes sufficient compliance with s 96(1)
7. › Trusts Act 1973 (Qld), s 96(1)
1. Equity
2. › Trusts and Trustees
3. › Applications to Court for Advice and Authority
4. › Costs
5. › Whether pre-emptive costs order should be made for main litigation
6. › Whether existing protection under r 700(2) UCPR renders pre-emptive order unnecessary
7. › Uniform Civil Procedure Rules 1999 (Qld), r 700(2)
1. Corporations
2. › Winding up
3. › Leave to proceed against company in liquidation
4. › Whether claim outside scope of proof of debt system
5. › Corporations Act 2001 (Cth), s 471B

Quick Take

Section 96(1) of the Trusts Act 1973 (Qld) requires a written statement of facts, not merely affidavit material; pointing a judge towards affidavits does not comply with the statutory requirement. A pre-emptive costs order for the main litigation is unnecessary where the trustee already has recourse to the trust fund under r 700(2) UCPR and there is no suggestion the fund will be insufficient. A claim for breach of trust that is outside the scope of the proof of debt system warrants leave under s 471B of the Corporations Act to proceed against a company in liquidation.