Kukolovski v Georges [2011] NSWSC 359 (3 May 2011)

Supreme Court of New South Wales Decisions

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Kukolovski v Georges [2011] NSWSC 359 (3 May 2011)

Last Updated: 26 May 2011

Supreme Court New South Wales

Case Title:	Kukolovski v Georges
Medium Neutral Citation:	[2011] NSWSC 359
Hearing Date(s):	29 April 2011
Decision Date:	03 May 2011
Jurisdiction:
Before:	Barrett J
Decision:	Further submissions to be made
Catchwords:	PRINCIPAL AND AGENT - real estate agent - agent appointed to find purchaser of property - entitlement to receive commission - where contract defines event upon which entitlement to commission arises and states circumstances in which commission is due and payable - whether agent entitled to receive commission where the event has happened but the circumstances do not exist - construction of contract - CORPORATIONS - winding up - winding up of real estate agency company - where deposit moneys received by company before winding up to be held as stakeholder - company is under an obligation to account for those moneys even though not pad into statutory trust account - but moneys not held by liquidator as trustee - PROCEDURE - where proceedings in truth adversarial are constituted as application by liquidator for judicial advice under Trustee Act and in the alternative for direction under Corporations Act - former inappropriate - latter of limited utility - need for proceedings to be reconstituted before remedies awarded
Legislation Cited:	Civil Procedure Act 2005, s 90 Corporations Act 2001 (Cth), Part 5.3A, s 511 Corporations Regulations 2001 (Cth) Property, Stock and Business Agents Act 2002, s 5(1)(f), s 5(3), s 55, s 88 Property, Stock and Business Agents Regulation 2003, Schedule 7 Trustee Act 1925, s 63
Cases Cited:	CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37; (2010) 14 BPR 27,361 Commissioner of Taxation v Linter Textiles Australia Ltd [2005] HCA 20; (2005) 220 CLR 592 Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd [2002] NSWSC 710; (2002) 56 NSWLR 27 Jainran Pty Ltd v Boyana Pty Ltd [2008] NSWSC 468 LJ Hooker Ltd v WJ Adams Estates Pty Ltd [1977] HCA 13; (1977) 138 CLR 52 New South Wales Land and Housing Corporation v Sydneywide Real Estate Co Pty Ltd (1998) 9 BPR 16,565 Otis Elevator Co Pty Ltd v Guide Rails Pty Ltd [2004] NSWSC 383; (2004) 49 ACSR 531 Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305; (2004) Aust Contract Rep 90-181 Terry Pfeiffer Real Estate Pty Ltd v Connors [2000] NSWSC 452
Texts Cited:
Category:	Principal judgment
Parties:	Trajan Kukulovski as liquidator of National Andrews Pty Ltd - Plaintiff Badoui Georges, Sam Georges, Peter Georges, John Gerard George, Anna Maree Waters and Samuel Kenneth George - Defendants
Representation
- Counsel:	Counsel: Mr K D Ginges - Plaintiff Mr M Southwick - Defendants
- Solicitors:	Solicitors: Clamenz Corporate Lawyers - Plaintiff Gary George & Co - Defendants
File number(s):	2011/046044
Publication Restriction:

Judgment

1. Mr Kukolovski is the liquidator of National Andrews Pty Ltd ("National") under a creditors voluntary winding up that followed voluntary administration under Part 5.3A of the Corporations Act 2001 (Cth).
   
2. By his summons filed on 11 February 2011, the liquidator seeks "the opinion, advice and direction of the court pursuant to section 63 of the Trustee Act 1925 or in the alternative section 511 of the Corporations Act 2001" on certain questions. The questions concern a sum of $62,500 held under the liquidator's control. The liquidator is uncertain whether those moneys are an asset applicable in the winding up of National.
   
3. Despite the form of the liquidator's alternative claims, six persons are named as defendants in his summons. They have filed an appearance and made submissions through counsel when the matter came before the court for hearing. They argued that they, not National, are entitled to the moneys to which the liquidator's application relates. The liquidator, for his part, has, through his counsel, exposed all the arguments in favour of the proposition that National in entitled to the moneys to the exclusion of the defendants. It is clear that no one other than the defendants and National has any maintainable claim to the moneys.
   
4. Given the way in which the proceedings were approached and argued, their form is anomalous. The implicit assumption that the liquidator is, in the sense relevant to s 63 of the Trustee Act , a trustee of money that is the property of National (even if held by National non-beneficially) is incorrect: Commissioner of Taxation v Linter Textiles Australia Ltd [2005] HCA 20; (2005) 220 CLR 592. And while the liquidator in a creditors voluntary winding up may seek what is effectively the direction of the court under s 511 of the Corporations Act , that is not a procedure apt to define rights and obligations inter partes: see, for example, Otis Elevator Co Pty Ltd v Guide Rails Pty Ltd [2004] NSWSC 383; (2004) 49 ACSR 531.
   
5. I raised with counsel on both sides the question whether steps should be taken to re-cast the proceedings as adversarial proceedings between National (not itself a party at this point) and the defendants, with claim and counterclaim articulated in relation to the moneys in the liquidator's hands. Neither Mr Ginges of counsel who appeared for the liquidator nor Mr Southwick of counsel who appeared for the defendants saw any need for that course; and given the clear indication by each that his client would abide by the court's decision on the application as it stands, I am content, for the moment, to proceed to the central question directly and without undue attention to the way in which it has arisen.
   
6. The facts are not in dispute. Indeed, the court had the benefit of an agreed statement of facts. National was, at material times, the holder of a real estate agent's licence under the Property, Stock and Business Agents Act 2002. It carried on a real estate agency business. The defendants are the registered proprietors of a home unit development at Granville. In October 2009, they appointed National as the selling agent for that property. A written agency agreement was entered into between the defendants as principals and National as agent. It was a printed form agreement identified by footnote as having been produced and distributed by the Real Estate Institute of New South Wales in August 2003. Blank spaces in the printed form were completed in handwriting.
   
7. The agreement contained relevant provisions as follows:
   

Clause 2(i):

"Agent's Remuneration

The Agent shall be entitled to a fee of 2.5% (GST incl) if during the Agency Period they effectively introduce a purchaser to the principal or the property who subsequently enters into a binding contract."

Clause 10:

"Principal's Fee Obligation

The fee to which the agent is entitled shall be due and payable on completion of the sale or upon demand if the sale is not completed owing to the default of the Principal after the parties have entered into a binding contract."

Clause 12:

"Authority to Deduct

The Agent is entitled to deduct all fees, expenses and charges from the deposit monies on receipt of authority from the purchaser or their solicitor to account to the Principal or their solicitor."

8. On 26 February 2010, a contract for sale was entered into between the defendants as vendors and a purchaser. The sale price was $2,500,000. A deposit of $125,000 was paid by the purchaser to National to be held by National as stakeholder in accordance with the contract. The deposit came in due course into the hands of the liquidator and was held in a bank account established by him in accordance with the Corporations Regulations 2001 (Cth).
   
9. The contract provided for completion 120 days after its date. Completion did not take place on the due date or at all. The purchaser failed to comply with a notice to complete served by the defendants as vendors. The defendants, as vendors, then exercised their right to terminate the contract and to forfeit the deposit. The purchaser apparently accepted that the defendants were entitled to take those steps since, by letter of 23 August 2010 to National, the purchaser's solicitors authorised release of the deposit to the vendors even though there had been no completion under the contract. In November 2010, the liquidator sent a cheque for $62,500 to the defendants' solicitors. He retained the remainder of the deposit (also amounting to $62,500) pending resolution of the dispute that had by then arisen and is now before me.
   
10. The question is whether, in the events that happened, National became entitled to receive the fee or commission provided for in the agency agreement (agreed to be 2.5% of $2,500,000, that is, $62,500) and whether the liquidator may, to the extent of that agreed fee or commission, treat the balance of the forfeited deposit still under his control as an asset available in the winding up of National. It is not disputed that, if such an entitlement to receive arose in National, the liquidator may treat the relevant amount in that way, whereas if no such entitlement arose, the money must be released to the defendants.
    
11. Submissions were addressed at two levels. First, there is the question whether, under the terms of the agency agreement, National became entitled to receive the fee or commission. Second and if the answer is in the affirmative, there is a question whether the contractual right is defeated by statutory provisions.
    
12. It is not disputed that National did what is contemplated by clause 2(i) of the agreement, that is, that it introduced a purchaser who subsequently entered into a binding contract and that this happened within the stipulated period. The condition in the part of clause 2(i) starting with the word "if" was satisfied, so that National was "entitled to" the specified fee.
    
13. The issue between the parties arises from clause 10. That clause identifies the point at which the clause 2(i) fee becomes "due and payable" - that is, obviously enough, due and payable by the principal (vendor) to the agent, so that the right to payment is enforceable by the agent.
    
14. The question is whether the true meaning and effect of clause 10 are that, even though an entitlement to the fee has arisen in the agent under clause 2(i) by reason of the agent's having introduced a purchaser who has entered into a binding contract, the obligation of the principal actually to pay the fee to which the entitlement relates and, accordingly, the right of the agent actually to receive it arise only if one of the clause 10 events happens - that is, if the sale under that contract is completed or if the principal (as vendor) defaults in completing and a demand for payment is thereafter made by the agent. In other words, does the clause 10 specification regarding the point at which the fee is "due and payable" qualify the clause 2(i) entitlement so that it is in truth an entitlement to receive only that which clause 10 makes due and payable?
    
15. Case law emphasises that the question of an estate agent's entitlement to commission and to receive payment of that commission is always a question of construction of the agency contract. As decided cases show, contractual provisions on the subject take many and varied forms. In New South Wales, however, the form and content of such provisions is influenced by the requirements of legislation. It is sufficient, at this point merely to note clause 9(1) of Schedule 7 to the Property, Stock and Business Agents Regulation 2003:
    

"The agreement must include a term specifying:

(a) the circumstances in which the licensee is entitled to remuneration (by way of commission or otherwise) for services performed under the agreement, and

(b) the amount of the remuneration or the way in which it is to be calculated, and

(c) when the remuneration is payable."

16. It is reasonable to infer that clause 2(i) of the agreement now before the court was formulated by reference to paragraph (a) of this provision, while clause 10 was formulated by reference to paragraph (c) - so that the two clauses together were intended to identify both the circumstances creating an entitlement to commission and the time at which the commission was payable.
    
17. While each case must depend on the particular contractual terms, guidance may usefully be drawn from cases in which similarly worded provisions have arisen for consideration.
    
18. One such case is New South Wales Land and Housing Corporation v Sydneywide Real Estate Co Pty Ltd (1998) 9 BPR 16,565. Clause 3(i) of the agency agreement there under consideration provided that " the agent shall be entitled to a commission of 0.75% of gross sale price if during the agency period the property is sold ...". Clause 12 provided:
    

"The commission to which the Agent is entitled shall be due and payable on completion of the sale or upon demand if the sale is not completed owing to the default of the Principal after the parties have entered into a binding contract."

19. During the agency period mentioned in clause 3(i), a contract for sale was entered into. The contract did not, however, proceed to completion. The vendor terminated the contract on the basis of breach by the purchaser. The deposit was forfeited to the vendor. Young J held that clause 12 made "the commission due and payable on completion of the sale, except for an event which did not happen" (a reference, I think, to demand by the agent after default of the vendor leading to non-completion) so that "[t]he whole contract must then be construed as meaning that the commission never became payable".
    
20. The approach that thus commended itself to Young J was thus that, unless clause 12 operated to make the commission due and payable, it "never became payable" and that this was so despite the entitlement provided for in clause 3(i) having arisen, in the sense that the event upon and by reference to which the entitlement was expressed to come into existence had in fact happened.
    
21. Another case involving provisions in terms similar to those now before the court is CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37; (2010) 14 BPR 27,361. The relevant clauses are described in the judgment at first instance ( Jainran Pty Ltd v Boyana Pty Ltd [2008] NSWSC 468) :
    

Clause 3 conferred on the agent an entitlement to a fee "If during the agency period they effectively introduce a purchaser of the property who subsequently entered into a binding contract".
Clause 11 provided: "The fee to which the Agent is entitled shall be due and payable on completion of the sale or upon demand if the sale is not completed owing to default of the Principal after the parties have entered into a binding contract."

22. In the Court of Appeal, the question of construction now before me did not arise directly. One member of the court did, however, make observations that are instructive for present purposes. Basten JA said (at [139] - [143]):
    

"It is convenient to consider first whether, in accordance with the agency contract, any entitlement to a fee arose.

The primary circumstance envisaged by the contract was a fee payable on completion. Thus, there was no entitlement in the agent in a case where, although a contract was entered into, it was not completed through no fault of the principal (the vendor). However, a fee entitlement arose where the contract was not completed, due to the default of the vendor. In that case the obligation to pay the fee was contingent upon a demand being made. The temporal element introduced by the words "after the parties have entered into a binding contract" was, in this respect, ambiguous. A demand could not be made until the time for completion had arrived. Even then, time might be extended. It cannot have been intended that a demand could be made at any time after the parties had entered into a binding contract. Accordingly, that language seems inappropriate to impose a temporal condition on the demand. The usual case in which a contract will not be completed is where one or other party fails to comply with its side of the bargain. Thus, the purchaser may be unable or unwilling to pay the purchase price, or the vendor may be unable or unwilling to make good its title. Generally speaking, it will not be possible to identify the party responsible for failing to complete until the time for completion has arrived.

The term "default" should also be understood in this context. Its primary operation must be as a description of the reason why the contract was not completed. It makes sense in circumstances where one or other party is unable or unwilling to comply with its obligations under the contract. It also makes sense to refer to that concept of default as arising after the parties have entered into a binding contract, as opposed to events which might have occurred before the contract was entered into.

Clause 11 does not in terms deal with a situation in which the contract is rescinded, although that might be an example of a contract not being completed, through the default of the principal. However, if the default is one which must arise after the parties have entered into the contract, no entitlement to payment would arise because of rescission based on earlier "default" of the vendor, if the existence of a right to rescission could properly be so described. Further, as the vendor argued, the reference to a "binding contract" is at least open to a construction which excludes a contract which is susceptible to rescission from the moment it is entered into, which is not apt to be described as a binding contract until, for example, the right to rescind is waived.

All the words in cl 11 must be given work to do. On the basis that the temporal element only has work to do in respect of the default, it should be concluded that no right to payment of the agency fee arose under the contract."

23. While Basten JA was mainly concerned with a point that does not arise in the present case and did not, in any explicit way, analyse the aspect of the provisions relevant to the present case, he obviously approached them on the footing that a right to receive payment arose in the agent only if and when clause 11 of the contract caused the commission to be due and payable by the principal; and that the accrual of an entitlement under clause 3 was, of itself, insufficient to create a right to receive payment.
    
24. There can be, in my view, no real doubt that that is the correct approach in the present case. The contract, while dealing separately with the accrual of an entitlement to the fee and the time at which the fee is due and payable, cannot sensibly be regarded as creating in the agent a right to sue for, recover and receive a fee to which the agent has an entitlement but which is not due and payable by the principal. The clause 2(i) concept of "entitlement" does no more, to my mind, than to define the service that the agent must render in order to be in a position to recover the fee if and when clause 10 causes that fee to be due and payable by the principal. The idea that the agent's clause 2(i) entitlement alone and without more grounds a cause of action to recover the fee is quite at odds with the reality that a creditor can recover from a debtor only that which is due and payable by the debtor.
    
25. In order to recover, the agent must show not only that the clause 2(i) entitlement to the fee has vested but also that clause 10 has made the fee due and payable. The clause 2(i) entitlement is not an entitlement to have the fee come what may; it is an entitlement to have the fee if and when clause 10 makes it due and payable by the principal.
    
26. Mr Ginges submitted that clause 12 warrants a different conclusion and that if, as here, the deposit moneys are in the agent's hands and the purchaser has authorised release of the deposit to the vendor, the existence of the clause 2(i) entitlement alone is sufficient to allow resort by the agent to those deposit moneys to satisfy the fee. That, in my opinion, is not the effect of the provision. Clause 12 is no more than a machinery provision about a particular method of paying a fee that is independently payable. It does not in any way create or define the right to payment. Only if an entitlement of the agent to the fee has arisen under clause 2(i) and the fee has become due and payable under clause 10 does clause 12 operate to allow a particular method of satisfying the right to payment that the agent can then properly assert.
    
27. The conclusion on the construction question is that, although National performed the service contemplated by clause 2(i), it did not obtain, as a matter of contract, a right to sue for, recover and receive any fee from the defendants; and that the defendants did not become, as a matter of contract, bound to pay any fee to National. Since termination of the contract (and hence its non-completion) resulted from the purchaser's default (not any default of the vendor), neither of the clause 10 events happened and the fee therefore never became due and payable by operation of that clause.
    
28. While, as I have said, every case depends on the terms of the particular contract, the result I have stated is in line with the general principle applied when the agency contract is silent or does not fully define the matter. The position was summarised by Gibbs J in LJ Hooker Ltd v WJ Adams Estates Pty Ltd [1977] HCA 13; (1977) 138 CLR 52 at 66-67 as follows:
    

When an agent is employed to sell a property, or to find a buyer, he does not earn his commission simply by finding someone who is ready, willing and able to buy, or who offers to buy. Notwithstanding what was said in an earlier decision of this Court, Macnamara v. Martin [1908] HCA 86; (1908) 7 CLR 699 , it has become clear since Luxor (Eastbourne) Ltd. v. Cooper (1941) AC 108 that in such a case it is at least necessary that a binding contract of sale should have been executed: see Luxor (Eastbourne) Ltd. v. Cooper (1941) AC, at pp 126, 129, 154 ; Jones v. Lowe (1945) KB 73; Fowler v. Bratt (1950) 2 KB 96 ; McCallum v. Hicks (1950) 2 KB 271 . In Victoria and in New Zealand it has been held that it is enough in such a case that a binding contract has been entered into as a result of the agency, even though the purchaser subsequently proves unable to complete it: Scott v. Willmore & Randell [1949] VicLawRp 21; (1949) VLR 113; Latter v. Parsons (1906) 26 NZLR 645; Manns v. Bradley (1960) NZLR 586. In Queensland, on the other hand, it has been held that the agent is not entitled to commission unless the purchaser who signed the contract was ready, willing and able to complete it: Pettigrew v. Klumpp (1942) St R Qd, 131 ; Hill v. Davidson (1950) St R Qd 31 . In Anderson v Densley [1953] HCA 47; (1953) 90 CLR 460, at p 467 three members of this Court, speaking obiter, said:

'Where an agent is employed on commission to sell a

property (and non-completion is not due to the default of the vendor) the commission only becomes payable if the sale is completed... If the plaintiff was the effective cause of that sale...he would at common law have earned his

commission.'

The Court of Appeal of New South Wales has since followed and applied that statement : Montano v. Caffrey (1968) 88 WN (Pt 1) (NSW) 240. As at present advised I see no reason to differ from the view expressed in Anderson v. Densley [1953] HCA 47; (1953) 90 CLR 460, but it is unnecessary to consider that question more fully because in the present case the contract made was actually completed."

29. The denial of commission in circumstances where, as here, a contract was entered into with a purchaser introduced by the agent but that contract was later terminated because of that purchaser's default is thus consistent with the general approach to implied terms in contracts of this type. According to that approach, completion of the contract is the event that makes commission payable and receivable, except where non-completion of the contract flows from default by the principal (vendor), in which event the agent's position as against the principal is the same as if the principal had not defaulted and completion had occurred. The principal, as a party to the agency agreement, is not permitted to benefit from its own default under the conveyancing transaction.
    
30. Because of my conclusion that, in the events that happened, the agency agreement did not create in National any right to sue for, recover and receive the agreed fee or commission, it is unnecessary to decide whether that right is denied or defeated by statute. I nevertheless proceed to give brief attention to that matter.
    
31. Section 55 of the Property, Stock and Business Agents Act 2002, so far as relevant, provides:
    

"(1) A licensee is not entitled to any commission or expenses from a person for or in connection with services performed by the licensee in the capacity of licensee for or on behalf of the person unless:

(a) the services were performed pursuant to an agreement in writing (an "agency agreement") signed by or on behalf of:

(i) the person, and

(ii) the licensee, and

(b) the agency agreement complies with any applicable requirements of the regulations, and

(c) a copy of the agency agreement signed by or on behalf of the licensee was served by the licensee on that person within 48 hours after the agreement was signed by or on behalf of the person.

(2) The regulations may make provision for or with respect to regulating the form of agency agreements and the terms, conditions and other provisions that an agency agreement must or must not contain. Without limiting this subsection, the regulations may prescribe one or more standard forms of agency agreement."

32. The defendants maintain that the agency agreement in this case did not, in terms of s 55(1)(b), comply with "applicable requirements of the regulations". Brief reference has already been made to provisions of Schedule 7 to the Property , Stock and Business Agents Regulation. That schedule prescribes required content of an agency agreement. It is necessary now to refer to the following additional provisions of the schedule:
    

"2. Names of parties to agreement

The agreement must specify the names of each of the parties to the agreement (including the licensee).

3. Information identifying parties

The agreement must specify the principal's address, the licensee's licence number and any business name under which the licensee conducts business."

33. The agreement with which I am concerned names the agent as "National Andrews R/E Pty Ltd". Andrews' name is "National Andrews Pty Ltd". The agreement therefore does not specify - or, at least, specify correctly - the name of one of the parties to it as required by clause 2 of Schedule 7. In addition, the agreement does not specify National's licence number: the space in the printed form for the insertion of that particular is blank. There is thus non-compliance with clause 3 of Schedule 7.
    
34. The second of these deficiencies (and probably also the first) is sufficient to attract the disentitlement created by s 55(1). That provision, like its counterpart in predecessor legislation, operates in an absolute and unforgiving way: see Terry Pfeiffer Real Estate Pty Ltd v Connors [2000] NSWSC 452; Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd [2002] NSWSC 710; (2002) 56 NSWLR 27; Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305; (2004) Aust Contract Rep 90-181. It is not to the point to note, as counsel for the liquidator did, that the agent's licence number was displayed at its business premises and that one of the defendants went to those premises to collect the agency agreement and then to return it after the defendants had signed it. That is irrelevant to the requirement that the agreement itself "specify" the number; and I do not accept the submission that the fact of such display somehow caused the licence number to be "implied" so as to be "specified" in the agreement itself.
    
35. I am accordingly of the opinion that, had the agency agreement, according to its terms, produced a right to payment of commission in National, s 55 of the Property, Stock and Business Agents Act would have denied entitlement to that commission, so that National could not have recovered it by action.
    
36. I should add for completeness that I do not accept the submission that this result is forestalled by s 5(1)(f) and s 5(3) of the Act. Section 5(1)(f), so far as relevant, says that the Act does not require a licence to be held by a liquidator, while s 5(3) categorises this as "an exemption . . . that allows a person to carry on a business lawfully without a licence". In the present case, the relevant events happened and the relevant contractual and statutory consequences concerning rights and obligations with respect to commission arose before the commencement of the winding up of National. The provisions which, in effect, allow a liquidator to operate a company's business even though the liquidator does not hold a licence are simply irrelevant to the circumstances.
    
37. I return, at this point, to the way in which these proceedings are constituted.
    
38. Money is held under the control of the liquidator. Because that money represented part of a larger whole received by National as a deposit to be held as stakeholder, National had no beneficial entitlement to it when it was received. National was required to hold the money in trust for (or, if not strictly a trustee, otherwise subject to an obligation to account owed to) both parties pending completion and, upon or in default of completion, to make payment to the party ultimately entitled to the deposit. National acknowledged its obligation in this respect by issuing a trust account receipt. This was in accordance with s 88 of the Property, Stock and Business Agents Act . In addition and as I have said, the liquidator is in no sense a trustee of the assets of National, including assets held by National non-beneficially.
    
39. For reasons that do not appear, the money in question was not held in National's statutory trust account at the time a receiver of the moneys in that account was appointed shortly before the commencement of National's voluntary administration. That does not change the circumstance that National was not beneficially entitled to it and was bound to account. This, coupled with, first, the fact that National, as stakeholder, was directed by the purchaser to pay the money to the defendants and, second, the conclusions I have stated with respect to commission, means that National has no right to the money as against the defendants and must account to the defendants; and the liquidator, as the person capable of acting for National, must cause it to do so.
    
40. In these circumstances, there is no occasion for the giving of judicial advice to the liquidator under the Trustee Act and, if the court were to give a mere direction of the kind that may be given to a liquidator under s 511 of the Corporations Act (which contains no equivalent of s 63(11) of the Trustee Act ), it would not, as contemplated by s 90 of the Civil Procedure Act 2005, " give such judgment or make such order as the nature of the case requires".
    
41. The appropriate course is, I think, that I hear submissions on the question of how effect should best be given to the conclusions I have reached. My impression is that it will be appropriate for the liquidator to add National as a plaintiff and for the position as between the liquidator and National on the one hand and the defendants on the other to be defined by suitably framed declaratory orders. It will also be necessary to hear submissions on costs.
    

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