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) [2019] NSWSC 106

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) [2019] NSWSC 106 Hearing dates: 1 September 2017, 15 November 2018 (last submissions as to orders and costs 4 February 2019) Decision date: 18 February 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: Priority regime under ss 556 and 561 of the Corporations Act 2001(Cth) does not apply to payments of debts and liabilities of the Partnership from the Partnership assets, the Liquidators of the Fifth Defendant hold the OzForex Monies on constructive trust for the partners of the Partnership, and associated orders made. Catchwords: ORDERS – determination as to form of orders to effect earlier judgment – where 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 should order that ss 556 and 561 of the Corporations Act do not apply to payment of the debts of a partnership from partnership assets Legislation Cited: - Conveyancing Act 1919 (NSW) s 37A - Corporations Act 2001 (Cth) ss 433, 440B, 556, 561 Cases Cited: - Commonwealth v Byrnes [2018] VSCA 41; (2018) 124 ACSR 246 - Re Amerind Pty Ltd (recs and mgrs apptd) (in liq) (No 2) [2017] VSC 169 - Re Langdon, Forge Group Ltd (recs and mgrs apptd) (in liq) (2017) 118 ACSR 434 - Re MF Global Australia Ltd (in liq) (No 2) [2012] NSWSC 1426 - Re O'Keeffe Heneghan Pty Ltd (in liq); Aus Life Pty Ltd (in liq) and Rocky Neill Construction Pty Ltd (in liq) (No 2) [2018] NSWSC 1958 - Re O'Keeffe Heneghan Pty Ltd (in liq); Aus Life Pty Ltd (in liq) and Rocky Neill Construction Pty Ltd (in liq) [2018] NSWSC 1885 - Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 - Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 307 Category: Costs Parties: Andrew Spring and Amanda Young (in their capacity as Receivers and Managers 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 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) Commonwealth Bank of Australia Limited (Seventh Defendant) Representation: Counsel: C R Brown (Plaintiffs) S Docker (First–Fifth Defendants) S Nixon/A Lyons (Sixth Defendant) P Newton (Seventh Defendant)