In the matter of Spitfire Corporation Limited (in liquidation) and Aspirio Pty Ltd (in liquidation) [2022] NSWSC 340

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Spitfire Corporation Limited (in liquidation) and Aspirio Pty Ltd (in liquidation) [2022] NSWSC 340 Hearing dates: 1 March 2022 and 11 March 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Jurisdiction: Equity - Corporations List Before: Black J Decision: Direction that the parties provide agreed short minutes of order to give effect to this judgment including as to costs within three business days, or otherwise their respective short minutes of order and submissions. Catchwords: CORPORATIONS — Winding up — Liquidators — Equitable lien — CORPORATIONS — Winding up — Priorities — Priorities in winding up — TAXES AND DUTIES — Income tax – MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Circulating asset — Circulating security interest — where company under administration was entitled to research and development tax offsets under the Income Tax Assessment Act 1997 (Cth) — whether research and development tax incentive refunds are subject to a circulating security interest — identifying the true employer for the purposes of Pt 5.6 Div 6 of the Corporations Act 2001 (Cth) Legislation Cited: - Corporations Act 2001 (Cth), Pt 5.6 Div 6 - Income Tax Assessment Act 1997 (Cth) - Personal Property Securities Act 2009 (Cth) Cases Cited: - Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; (1993) 112 ALR 627; (1993) 10 ACSR 230; [1993] HCA 15 - Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2015] WASCA 143 - Carter Holt Harvey Woodproducts Australia Pty Limited v Commonwealth (2019) 268 CLR 524 - Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (in liq) (2016) 332 ALR 349; [2016] NSWCA 69 - Commissioner of Taxation v Official Receiver (1956) 95 CLR 300 - Commonwealth v Byrnes (2018) 54 VR 230; [2018] VSCA 41 - Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174; [2011] FCA 1176 - Fire Nymph Products Pty Ltd v Heating Centre Pty Ltd (1988) 14 NSWLR 460 - Golden Plains Fodder Australia Pty Ltd v Millard (2007) 99 SASR 461; [2007] SASC 391 - Gothard, in the matter of AFG Pty Limited (Receivers and Managers appointed) (in liq) v Davey (2010) 80 ACSR 56; [2010] FCA 1163 - Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (recs and mgrs apptd) (2017) 52 WAR 90; (2017) 320 FLR 259; [2017] WASC 152 - Hamersley Iron Pty Ltd v Forge Power Pty Ltd (2018) 53 WAR 325; [2018] WASCA 163 - Health Insurance Commission v Peverill (1994) 179 CLR 226 - Kirman v RWE Robinson & Sons Pty Ltd (in liq), in the matter of RWE Robinson and Sons Pty Ltd (in liq) [2019] FCA 372 - Liberty Mutual Insurance Company Australian Branch t/as Liberty Special Markets v Icon Co (NSW) Pty Ltd (2021) 396 ALR 193 - Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 - Pitcher v Langford (1991) 23 NSWLR 142 - Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 121 ACSR 201; [2017] VSC 127 - Ratcliffe v Watters (1969) 2 NSWR 146 - Re Branded Media Holdings Pty Ltd (in liquidation); Re Brand New Media Pty Limited (subject to a deed of company arrangement) [2020] NSWSC 557 - Re C & T Grinter Transport Services Pty Ltd (in liq) [2004] FCA 1148 - Re DH International Pty Ltd (in liq); Challis v Hoffmann (2017) 121 ACSR 585; [2017] NSWSC 870 - Re Evans; Sweeney v Evans (1995) 61 FCR 556 - Re French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361 - Re Langdon; Forge Group Ltd (recs and mgrs apptd) (in liq) (2017) ACSR 434; [2017] FCA 170 - Re Mondin; Ex parte Bradshaw (1985) 6 FCR 430 - Re Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556 - Re RCR Tomlinson Ltd (admins apptd) [2020] NSWSC 735 - Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 - Strategic Finance Ltd (in liq) v Bridgman [2013] NZLR 650; [2013] NZCA 357 - Sturesteps v McGrath [2010] NSWSC 169 - Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465 - Utah Construction and Engineering Pty Ltd (1996) 116 CLR 200 - WorkCover Corporation v Jakas (2003) 86 SASR 20 Category: Principal judgment Parties: Katherine Elizabeth Barnet and Damien Mark Hodgkinson in their capacity as joint and several liquidators of Spitfire Corporation Ltd (in liq) and Aspirio Pty Ltd (in liq) (First Plaintiffs) Spitfire Corporation Ltd (in liq) (Second Plaintiff) Aspirio Pty Ltd (in liq) (Third Plaintiff) Representation: Counsel: D Krochmalik (Plaintiffs) M Izzo SC/C Ernst (Interested Party) J Burnett (Interested Party)