Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

CARTER HOLT HARVEY WOODPRODUCTS AUSTRALIA PTY LTD APPELLANT

AND

THE COMMONWEALTH OF AUSTRALIA & ORS RESPONDENTS

Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20 19 June 2019 M137/2018

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Victoria

Representation

D J Williams QC for the appellant (instructed by Polczynski Robinson)

J P Moore QC with J A G McComish for the first respondent (instructed by King & Wood Mallesons)

No appearance for the second respondents

Submitting appearance for the third respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth

Corporations – External administration – Receivers and other controllers of property – Priority debts – Where corporation carrying on business solely as trustee created circulating security interest over trust assets in favour of bank – Where receivers and managers appointed by bank realised trust assets and satisfied obligations to bank – Whether surplus proceeds required to be paid in accordance with Corporations Act 2001 (Cth), s 433 – Whether corporation's right of indemnity is property of the company "comprised in or subject to a circulating security interest" within meaning of s 433 – Whether trust assets themselves are such "property of the company" – Whether statutory order of priorities for payment of debts applicable to distribution of surplus proceeds from trust assets among trust creditors – Whether proceeds from exercise of insolvent corporate trustee's right of exoneration to be applied only in satisfaction of trust liabilities to which it relates.