Fisher v Madden

(2002) 54 NSWLR 179; [2002] NSWCA 28

NSW Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Receivers and managers
3. › Priority of debts
4. › Payment out of property subject to floating charge
5. › Retrenchment payments payable to employees
6. › Whether potential order of Industrial Relations Commission retrospectively varying contract of employment created priority debt
7. › Corporations Law, ss 433(3)(c), 553, 556(1)(h), 556(2)
1. Corporations
2. › Receivers and managers
3. › Priority of debts
4. › Date for ascertainment of liabilities
5. › Whether claims and debts must exist at date of receiver's appointment
6. › Corporations Law, ss 433(3)(c), 433(9), 554
1. Industrial Law
2. › Industrial Relations Commission
3. › Power to declare contracts void or varied
4. › Nature of rights conferred by s 106
5. › Whether s 106 creates rights or obligations or merely confers jurisdiction
6. › Industrial Relations Act 1996 (NSW), ss 105, 106
1. Corporations
2. › Winding up
3. › Proof and ranking of claims
4. › Contingent debts or claims
5. › Whether right to apply for order under s 106 constitutes contingent debt or claim
6. › Corporations Law, s 553

Quick Take

An employee's right to seek an order under s 106 of the Industrial Relations Act 1996 (NSW) varying a contract of employment does not create an obligation on the company that would give rise to a priority debt under s 433(3)(c) of the Corporations Law. Even if the Industrial Relations Commission subsequently varies the contract ab initio to include a retrenchment payment, no amount for retrenchment payment had become 'payable' at the relevant date within s 556(2). The order of priority of debts in a receivership is fixed at the date of the receiver's appointment.