In the matter of BCA National Training Group Pty Ltd (in liq) [2023] NSWSC 366

Supreme Court New South Wales

Medium Neutral Citation: In the matter of BCA National Training Group Pty Ltd (in liq) [2023] NSWSC 366 Hearing dates: 31 March 2023 Date of orders: 13 April 2023 Decision date: 13 April 2023 Jurisdiction: Equity - Corporations List Before: Black J Decision: Direct the parties to submit agreed short minutes of order to give effect to this judgment, including as to costs, within 7 days and, in the event of disagreement, their respective draft minutes of order and submissions not exceeding 5 pages in Arial font 12 and one and a half spacing as to the differences between them. Catchwords: CORPORATIONS – Application for directions as to whether s 561 of the Corporations Act requires preferred creditors to be paid in priority to liquidator's remuneration and expenses in a winding up – Where secured debt paid out from non-circulating assets. Legislation Cited: - Companies Act 1928 (UK), s 264 - Companies Act 1948 (UK), ss 94, 319 - Companies Code 1981 (NSW), s 446 - Corporations Act 1989 (Cth), s 561 - Corporations Act 2001 (Cth), ss 433, 553, 556, 561 - Insolvency Act 1986 (UK), ss 40, 175 - Insolvency Practice Schedule (Corporations), s 90-15 - Personal Property Securities Act 2009 (Cth), s 142 - Preferential Payments in Bankruptcy Amendment Act 1897 (UK), s 2 - Uniform Companies Act 1961 (NSW), s 292 Cases Cited: - Aldi Foods Pty Ltd v Shop, Distributive and Allied Employees Association (2017) 262 CLR 593; [2017] HCA 53 - Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 - Brash Holdings Ltd (admin apptd) v Katile Pty Ltd [1996] 1 VR 24 - Buchler v Talbot [2004] 2 AC 298 - Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 - CIL Realisations Ltd (In Liquidation) [2001] BCC 3000 - Cook v Italiano Family Fruit Company Pty Ltd (in Liq) (2010) 190 FCR 474; [2010] FCA 1355 - Duckworth (as trustee for the Ocean Farm Trust) v Water Corporation (2012) 261 FLR 185; [2012] WASC 30 - Equititrust Ltd (In Liq) (Receiver Appointed) (Receivers and Managers Appointed) (No 4) [2017] FCA 1133 - Kirman v RWE Robinson & Sons Pty Ltd (in liq) [2019] FCA 372 - Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 - Re Banksia Securities Ltd (recs and mgrs apptd) (in liq) [2022] NSWSC 1106 - Re GL Saunders Ltd [1986] 1 WLR 215 - Re Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556 - Re Pearl Maintenance Services Ltd [1995] BCC 657 - Re RCR Tomlinson Ltd (admins apptd) [2020] NSWSC 735 - Re Universal Distributing Company Ltd (in liq) (1933) 48 CLR 171; [1933] HCA 2 - Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 - Saker, in the matter of Great Southern Ltd [2014] FCA 771 - Selim v McGrath (2003) 47 ACSR 537 Category: Principal judgment Parties: Bradley Tonks in his capacity as liquidator of BCA National Training Group Pty Ltd (in liq) (Plaintiff) Commonwealth of Australia as represented by the Department of Employment and Workplace Relations (Interested Party) Representation: Counsel: B Katekar SC (Plaintiff) J Moore KC/S Friere (Interested Party)