"The Intersection of Companies and Trusts" presented by The Hon Chief Justice James Allsop AO, Federal Court of Australia
Date: 26 September 2019
In 1981, Professor Harold Ford wrote an article on 'Trading Trusts and Creditors’ Rights'. In it, he described trading trusts, an intersection of companies and trusts that had emerged in the decade prior as an increasingly popular alternative to the proprietary company, as a 'commercial monstrosity'. It has been nearly 40 years since those comments yet there is still no coherent and unified approach by Australian courts as to their treatment under Australian company law, nor is there any clear treatment of them in the Corporations Act 2001 (Cth).
On 5 February 2019, the High Court heard the appeal of what is commonly known as the Amerind matter. In the context of this appeal and other recent significant case law, this speech examines the development of the law on trading trusts, specifically on the issue of trust property in an insolvency administration.