In the matter of Broens Pty Limited (in liq) [2018] NSWSC 1747

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Broens Pty Limited (in liq) [2018] NSWSC 1747 Hearing dates: 2, 6 July 2018; 26 October 2018 Decision date: 15 November 2018 Before: Gleeson J Decision: (1) The first plaintiff, Mr Trevor Pogroske, as liquidator of the second plaintiff, Broens Pty Ltd (in liq) ACN 600 877 790 (the Company), would be justified in making distributions to the creditors of the Company in advance of the determination of the appeal proceedings before the South Australian Employment Tribunal between Broens SA Pty Ltd and Inspector Hatchard (case no. 154/2018).

(2) Mr Trevor Pogroske, as liquidator of the Company, would be justified in ignoring any claims of the former employees of the Company identified in the Schedule to these orders (the transferring employees) in respect of long service leave entitlements as at 27 January 2017 insofar as the transferring employees have either (a) not lodged a formal proof of debt making a claim against the Company for long service leave entitlements, or (b) have not sought to appeal the decision of the liquidator to reject that part of the proof of debt lodged by the transferring employee making a claim for long service leave entitlements.

(3) The costs of the originating process be costs in the winding up of the Company. Catchwords: CORPORATIONS – winding up – liquidators – application by liquidator for directions relating to distributions to creditors – Corporations Act 2001 (Cth), Sch 2 – Insolvency Practice Schedule (Corporations), s 90-15(3)(a) – where sale of the company's assets and some employees transferred to the purchaser – dispute between liquidator and new employer concerning which employer was responsible for long service leave entitlements – where liquidator called for and ruled on proofs of debt from transferring employees – where no appeal brought against liquidator's decision that no long service leave entitlements would be paid to transferring employees – where liquidator received legal advice which supported his decision – whether appropriate to give directions that liquidator is justified in making distributions to creditors ignoring any claims by the transferring employees for long service leave entitlements Legislation Cited: Corporations Act 2001 (Cth), ss 439C(c), 446A(2), 479(3), 511, 560 Sch 2 – Insolvency Practice Schedule (Corporations), ss 90-15, 5-15(c) Corporations Regulations 2001 (Cth), r 5.6.54 Fair Entitlements Guarantee Act 2012 (Cth) Long Service Leave Act 1987 (SA), ss 3, 5, 12 South Australian Employment Tribunal Act 2014 (SA), ss 67, 68 Cases Cited: Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd (1994) 49 FCR 334 Hitchin v Labourforce Solutions Pty Ltd [2009] SASC 85; (2009) 184 IR 262 In the Matter of ICS Real Estate Pty Ltd (in liq) [2014] NSWSC 479 Krejci (liquidator), in the matter of Community Work Pty Ltd (in liq) [2018] FCA 425 Meadow Springs Fairway Resort Ltd (in liq) v Balance Securities Ltd [2007] FCA 1443 Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 Re Glowbind Pty Ltd (in liq) [2003] NSWSC 1190; (2003) 48 ACSR 456 Re Magic Aust Pty Ltd (in liq) (1992) 7 ACSR 742 Re MF Global Australia Ltd (in liq) (2012) 267 FLR 27; [2012] NSWSC 994 Re Willmott Forests Ltd (No 2) [2012] VSC 125; (2012) 88 ACSR 18 Selim v McGrath (2003) 177 FLR 85; [2003] NSWSC 927 Walley, in the matter of Poles & Underground Pty Ltd (Admin Apptd) [2017] FCA 486 Category: Principal judgment Parties: Trevor Mark Pogroske in his capacity as Liquidator of Broens Pty Ltd (in Liquidation) ACN 600 877 790 (First plaintiff) Broens Pty Ltd (Second plaintiff) Representation: Counsel: Mr D R Sulan (Plaintiffs)