In the matter of Australian Institute of Professional Education Pty Limited (In Liquidation) [2018] NSWSC 1028

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Australian Institute of Professional Education Pty Limited (In Liquidation) [2018] NSWSC 1028 Hearing dates: 25 May 2018 (last submissions 22 June 2018) Decision date: 04 July 2018 Jurisdiction: Equity - Corporations List Before: Black J Decision: Declaration made that the Deposit Amount is available to the First Plaintiffs as an asset of the Second Plaintiff to be dealt with in accordance with s 556 of the Corporations Act 2001 (Cth). Catchwords: CORPORATIONS – external administration – interaction between priority of distribution of assets in liquidation under s 556 of the Corporations Act 2001 (Cth) and amount protected under s 29 of the Education Services for Overseas Students Act 2000 (Cth) – where company has ceased to be a registered provider – whether s 29 of the Education Services for Overseas Students Act entitles the TPS Director to priority over the company's other creditors in relation to protected amount – whether deposit amount is subject to a constructive trust for the benefit of the TPS Director. Legislation Cited: - Acts Interpretation Act 1901 (Cth) s 15AA - Child Support (Registration and Collection) Act 1998 (Cth) s 50 - Corporations Act 2001 (Cth) ss 5G, 447D, 473, 491, 501, 511, 555, 556, 722, 981H - Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991 (Cth) - Education Services for Overseas Students (TPS Levies) Act 2012 (Cth) s 5 - Education Services for Overseas Students Act 2000 (Cth) ss 4A, 24, 28, 29, 46A, 46D, 47D, 47E, 50A, 50B, 50C, 52A, 52C, 54A - Education Services for Overseas Students Amendment Act 2014 (Cth) - Insurance (Agents and Brokers) Act 1994 (Cth) s 28 Cases Cited: - Bathurst City Council v PwC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566 - Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83; (2009) 78 NSWLR 43 - Commissioner of Taxation v Macquarie Health Corporation Ltd (1998) 88 FCR 451 - Duke Group Ltd (in liq) v Arthur Young (Reg) and Peat Marwick Hungerfords & Ors (1991) 4 ACSR 355 - Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 - Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41 - Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 483 - Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 - Re Courtenay House Capital Trading Group Pty Ltd (in liq) and Courtenay House Pty Ltd (in liq) [2018] NSWSC 404 - Re Hawden Property Group Pty Ltd (in liq) [2018] NSWSCA 481 - Re MF Global Australia Ltd (in liq) [2012] NSWSC 994 - Re Mowbray College (in liq) (rec and mgr apptd) [2013] VSC 565 - Reidy, in the matter of eChoice Ltd (admin apptd) [2017] FCA 1582 - Wambo Coal Pty Ltd v Ariff [2007] NSWSC 589; (2007) 25 ACLC 809 - Williams Business College Ltd v Tertiary Education Quality and Standards Agency [2014] AATA 371 - Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 Category: Principal judgment Parties: George Georges, Morgan Kelly and Ryan Eagle in their capacity as joint and several liquidators of Australian Institute of Professional Education Pty Limited (In Liquidation) (First Plaintiffs) Australian Institute of Professional Education Pty Limited (In Liquidation) (Second Plaintiff) Vipan Mahajan, Director, Tuition Protection Service, appointed pursuant to s 54A of the Education Services for Overseas Students Act 2000 (Defendant) Representation: Counsel: D Pritchard SC/C Hamilton-Jewell (Plaintiffs) F Assaf (Defendant)