Re Life Insurance Act 1945-1959; Re Order to Wind Up Associated Dominions Assurance Society Pty Ltd [1962] HCA 46

High Court of Australia Taylor J. Re Life Insurance Act 1945-1959; Re Order to Wind Up Associated Dominions Assurance Society Pty Ltd [1962] HCA 46

ORDER Instruct the liquidators pursuant to s. 67 (4) of the Life Insurance Act 1945-1950 they will be justified in discharging the claim of Herbert Hayes for the sum of £754 11s. 8d. as and for his ordinary pay for long service leave pursuant to s. 4 (5) (a) of the Long Service Leave Act, 1955.

Cur. adv. vult.

Aug. 31 Taylor J. delivered the following written judgment:

In this application the liquidators of Associated Dominions Assurance Society Pty. Limited seek directions concerning a claim by one Herbert Hayes for the sum of £754 11s. 8d. in lieu of long service leave which he claims accrued to him in September 1959 pursuant to the Long Service Leave Act, 1955 N.S.W..

Briefly, the evidence shows that an order was made on 10th December 1953 for the winding-up of the company under the provisions of the Life Insurance Act 1945-1950 Cth and some six days later an order was made defining the powers of the liquidators. These powers included a power to carry on the business of the company so far as might be necessary for the beneficial winding-up thereof. Mr. Hayes had commenced his service with the company (or its "transmittor" or "prior transmittor"—as to which see s. 4 (11) (c) of the Long Service Leave Act, 1955) in 1921 and after occupying various positions in its employ became general manager of the company. There is evidence that some little time before the winding-up order was made a resolution of the board of directors of the company was passed which purported to appoint him managing director of the company but upon consideration of the articles of association I have formed the view that this resolution was not effective and that Mr. Hayes' claim ought to be considered on the basis that he remained general manager of the company, at least until the winding-up order was made. It is said that at that time the liquidators terminated the employment of most of the employees of the company but retained the services of certain key employees. Included among these was Mr. Hayes and he was in the company's employment from the date of the winding-up order until September 1959.