In the matter of O’Keeffe Heneghan Pty Ltd (in liquidation); Aus Life Pty Ltd (in liquidation) and Rocky Neill Construction Pty Ltd (in liquidation); AND IN THE MATTER OF: O’Keeffe Heneghan Pty Ltd (in liquidation); Aus Life Pty Ltd (in liquidation) and Rocky Neill Construction Pty Ltd (in liquidation) trading as KNF Group (a firm) [2018] NSWSC 1885

Supreme Court New South Wales

Medium Neutral Citation: In the matter of O'Keeffe Heneghan Pty Ltd (in liquidation); Aus Life Pty Ltd (in liquidation) and Rocky Neill Construction Pty Ltd (in liquidation); AND IN THE MATTER OF: O'Keeffe Heneghan Pty Ltd (in liquidation); Aus Life Pty Ltd (in liquidation) and Rocky Neill Construction Pty Ltd (in liquidation) trading as KNF Group (a firm) [2018] NSWSC 1885 Hearing dates: 15 November 2018 Decision date: 07 December 2018 Jurisdiction: Equity - Corporations List Before: Black J Decision: The priority regime prescribed by s 561 of the Corporations Act 2001 (Cth) does not apply to the payment of the debts of the Partnership from the Partnership assets. Catchwords: CORPORATIONS – application for directions that priority regime prescribed by the Corporations Act 2001 (Cth) does not apply to the payment of the debts of a partnership from partnership assets – where partners to a partnership are corporations that are in liquidation – whether s 561 of the Corporations Act applies in the winding up of a partnership – whether the priority regime prescribed by s 561 of the Corporations Act should be applied to the payment of the debts of a partnership by its terms or because equity follows the law. Legislation Cited: - Bankruptcy Act 1914 (UK) s 33 - Bankruptcy Act 1966 (Cth) s 110 - Companies Act 1948 (UK) s 319 - Companies Act 1961 (NSW) s 292 - Corporations Act 2001 (Cth) ss 433, 439A, 440B, 553, 553E, 555, 556, 560, 561, 588G - Fair Entitlements Guarantee Act 2012 (Cth) s 28 - Partnership Act 1892 (NSW) ss 4, 9, 20, 39, 44 - Personal Property Securities Act 2009 (Cth) Cases Cited: - Anmi Pty Ltd v Williams [1981] 2 NSWLR 138 - Commonwealth of Australia v Byrnes & Hewitt in their capacity as joint and several receivers and managers of Amerind Pty Ltd (recs and mgrs apptd) (in liq) [2018] VSCA 41; (2018) 124 ACSR 246 - Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 - Commissioner of State Revenue v Danvest Pty Ltd [2017] VSCA 382 - Federal Commissioner of Taxation v Everett (1980) 143 CLR 440 - GE Capital Australia v Davis (2002) 11 BPR 20.529 - Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 354 ALR 436; 124 ACSR 568 - Re Amerind Pty Ltd (recs and mgrs apptd) (in liq) [2017] VSC 127 - Re Fuller's Contract [1933] Ch 652 - Re Independent Contractor Services (Aust) Pty Ltd (in liq) (No 2) (2016) 305 FLR 222 - Re Rudd & Son Ltd [1984] Ch 237 - Woodgate v Davis [2002] NSWSC 616; (2002) 55 NSWLR 222 - Woods & White v Hopkins [2016] WASC 16 Texts Cited: - K L Fletcher, The Law of Partnership in Australia, 9th ed, Lawbook Co, 2007 Category: Principal judgment Parties: Andrew Spring and Amanda Young (in their capacity as Receivers and Managers O'Keeffe Heneghan Pty Ltd (in liquidation), Aus Life Pty Ltd (in liquidation) and Rocky Neill Construction Pty Ltd (in liquidation) trading as KNF Group (a partnership) (First and Second Plaintiff) IFG Network Australia Pty Ltd (Third Plaintiff) Andrew Sallway (in his capacity as joint and several liquidator of O'Keeffe Heneghan Pty Ltd (in liquidation), Aus Life Pty Ltd (in liquidation) and Rocky Neill Construction Pty Ltd (in liquidation) (First Defendant) James White (in his capacity as joint and several liquidator of O'Keeffe Heneghan Pty Ltd (in liquidation), Aus Life Pty Ltd (in liquidation) and Rocky Neill Construction Pty Ltd (in liquidation) (Second Defendant) O'Keeffe Heneghan Pty Ltd (in liquidation) (Third Defendant) Aus Life Pty Ltd (in liquidation (Fourth Defendant) Rocky Neill Construction Pty Ltd (in liquidation) Fifth Defendant) Commonwealth of Australia represented by the Department of Employment (Sixth Defendant) Representation: Counsel: C R Brown (Plaintiffs) S Docker (First – Fifth Defendants) S Nixon/A Lyons (Sixth Defendant)