High Court of Australia
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(HIGH COURT OF AUSTRALIA.] In rp RICHARD FOREMAN & SONS PTY. LTD. ; UTHER . ' Ercan = ;. : fs . APPLICANT ;
AND
THE FEDERAL COMMISSIONER OF TAXA- TION AND ANOTHER. 2 2 ResPoNDENT.
ON REMOVAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
H.C. of A. Constitutional Law (Cth.)—Debts due to Crown in right of Commonwealth—Prerogative
1947. right to priority of payment—Legislative power of State to restrict or abolish Se priority—Inconsistency of State and Commonwealth legislation —Winding up of Sypyey, companies—Debts due for sales tax and pay-roll tax—The Constitution (63 & Aug, 14, 15; 64 Vict. c. 12), 88. 61, 109—Sales Tax Assessment Act (No. 1) 1930-1942 (No. 25 Dec. 2. of 1930—No. 54 of 1942), ss. 30, 32—Pay-roll Tax Assessment Act 1941-1942 Tatham O., (No. 2 of 1941—No. 48 of 1942), ss. 28, 30—Companies Act 1936 (N.S.W.) an ee (No. 33 of 1936), 88. 199, 282, 297, Willams Joe Held, by the whole Court, that it was the intention of the Parliament of New
South Wales that the Crown in right of the Commonwealth should be bound by the provisions of the Companies Act 1936 (N.S.W.) relating to the priority of debts in the winding up of insolvent companies.
Held, further, (1) by Latham O.J., Rich, Starke and Williams JJ. (Dizon J. dissenting), that it is within the constitutional competence of the Parliament of New South Wales, in legislation relating to the winding up of companies, to restrict or abolish the prerogative right of the Crown in right of the Common- wealth to payment of debts due to it in priority to all other debts of equal degree; (2) by Latham 0.J., Rich, Starke and Williams J3. (McTiernan J. dissenting), that the Sales Tax Assessment Act (No. 1) 1930-1942 and the Pay-roll Tax Assessment Act 1941-1942 do not confer any statutory right of priority of payment of debts due for sales tax and pay-roll tax ; therefore there is no inconsistency, within the meaning of s. 109 of the Constitution, between those Acts and the provisions of the Companies Act (N.S.W.) depriving the
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