Commonwealth of Australia v Tonks [2023] NSWCA 285

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Commonwealth of Australia v Tonks [2023] NSWCA 285 Hearing dates: 20 November 2023 Decision date: 30 November 2023 Before: Bell CJ at [1]; Adamson JA at [2]; Griffiths AJA at [74] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. (3) Order the applicant to pay the respondent's costs of the appeal. Catchwords: CORPORATIONS — priorities — circulating assets — insufficiency of assets — Commonwealth subrogated rights of employees of company being wound up — whether liquidator's claim for remuneration, costs and expenses ranks ahead of priority creditor — whether order of priority established by ss 556 or 561 of Corporations Act 2001 (Cth) CORPORATIONS — statutory construction — legislative history of provisions — meaning of the word 'claim' in s 561 of Corporations Act – relationship between ss 433 and 561 — when determination for insufficiency of assets is to be made by liquidator or receiver Legislation Cited: Companies Act 1883 (UK) Corporations Act 2001 (Cth), ss 433, 554E, 556, 561, Sch 2, s 90-15 of the Insolvency Practice Schedule (Corporations) Fair Entitlements Guarantee Act 2012 (Cth), s 31 Personal Property Securities Act 2009 (Cth), s 142 Preferential Payments in Bankruptcy Amendment Act 1897 (UK), ss 2, 3 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Buchler v Talbot [2004] 2 AC 298; [2004] UKHL 9 Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20 Cook v Italiano Family Fruit Company Pty Ltd (in liq) (2010) 190 FCR 474; [2010] FCA 1355 In the matter of Force Corp Pty Ltd (in liq) [2020] NSWSC 1842 In the matter of RCR Tomlinson Ltd (administrators appointed) [2020] NSWSC 735 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 Re GL Saunders Ltd [1986] 1 WLR 215 Re Great Southern Ltd (recs and mgrs apptd) (in liq); Ex parte Thackray [2012] WASC 59; (2012) 260 FLR 362 Re Pearl Maintenance Services Ltd [1995] BCC ChD 657 Re Tarjan Construction Co Pty Ltd (in liq) [1964] NSWR 1054 Re Universal Distributing Co Ltd (In Liq) (1933) 48 CLR 171; [1933] HCA 2 Saker, in the matter of Great Southern Ltd [2014] FCA 771 Stein v Saywell (1969) 121 CLR 529; [1969] HCA 16 Category: Principal judgment Parties: Commonwealth of Australia (Applicant) Bradley John Tonks (in his capacity as Liquidator of BCA National Training Group Pty Ltd (in liq)) (Respondent) Representation: Counsel: J Moore KC / A Roe (Applicant) B Katekar SC / S Hoare (Respondent)