Stein v Saywell [1969] HCA 16

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Owen JJ. Stein v Saywell [1969] HCA 16

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1969, April 24 Barwick C.J.

Upon an originating summons taken out in the Supreme Court of New South Wales by the respondent, George Montague Saywell, as receiver on behalf of the respondents Keith Alfred Britter, Cestus O'Donnell, John Michael Quain and Norman Jeffrey Robinson (the respondent creditors) and also as liquidator of Carapark Industries Pty. Ltd. (the company) for declarations and directions in connexion with the order of priority of payment of certain debts of the company, his Honour Mr. Justice Street sitting in the equitable jurisdiction of the Court held that the date of the making of the order winding up the company was relevantly the commencement of the winding up. Upon this footing, his Honour gave certain directions unfavourable to the claims of certain employees of the company. The employees claimed priority of payment under s. 292 (1) (d) of the Companies Act, 1961 N.S.W. (the Companies Act) for money payable to them in respect of annual and long service leave. Section 292 (1) (d) is in the following terms:

172. (1) Subject to the provisions of this Act, in a winding up there shall be paid in priority to all other unsecured debts—

(d) fourthly, all remuneration payable to any employee in respect of annual leave or long service leave, or both or in the case of his death to any other person in his right, accrued in respect of any period before the commencement of the winding up.

From his Honour's order an appeal was unsuccessfully taken by the appellant as representative of the employees to the Court of Appeal Division of the Supreme Court. The matter was dealt with at both stages in the Supreme Court as if the entitlement to annual leave upon which the rejected claims were in part based was derived by the employees under the Annual Holidays Act, 1944, of the State of New South Wales and their entitlement to long service leave upon which the other part of those claims was based arose under the Long Service Leave Act, 1955, of that State (the Long Service Leave Act). No precise information was before the Supreme Court as to the circumstances affecting the entitlement of the claimant employees to annual or to long service leave respectively. However, at the instance of this Court during the argument of this appeal the employees' claims for which priority is asserted in the winding up were further and more fully investigated. As a result a statement of mutually admitted facts was lodged with the Court. It is upon the state of facts thus disclosed that the Court proposes to deal with the appeal.