In the matter of Dalma No 1 Pty Limited (in liquidation) (ACN 111 772 260)

[2013] NSWSC 1335

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. CORPORATIONS — EXTERNAL ADMINISTRATION — Winding up — priorities — subrogation — Where third party voluntarily paid certain employee entitlements owing by company after date on which winding up deemed to have commenced — whether third party entitled to be subrogated, pursuant to Corporations Act 2001 s 560, to priority position enjoyed by employees in respect of liabilities of the company that it had discharged — No entitlement to subrogation per s 560 because company in liquidation did not pay the employee related liabilities using monies lent to it by third party, instead, the third party paid those liabilities directly itself.
1. EQUITY — SUBROGATION — Whether Corporations Act 2001 s 560 leaves any room for operation of equitable doctrine of subrogation — section 560 creates right of subrogation where one would not otherwise exist — in context of liquidation, equitable subrogation not excluded by provisions of Corporations Act — whether requirements for equitable subrogation satisfied — only context in which spontaneous voluntary payment by a third party may found a claim for subrogation is in exceptional category of the payment off of existing securities — basis for equitable subrogation not established because third party made payments spontaneously and voluntarily, in absence of any circumstances affecting the company's conscience.