(1) Subject to this Division, in the winding up of a company the following
debts and claims must be paid in priority to all other unsecured debts and
claims:
- (a)
- first, expenses (except deferred expenses) properly incurred by
a relevant authority in preserving, realising or getting in property of the
company, or in carrying on the company's business;
- (b)
- if the Court ordered the winding upnext, the costs in respect of the
application for the order (including the applicant's taxed costs payable under
section 466);
- (c)
- next, the debts for which paragraph 443D(a) entitles an administrator of
the company to be indemnified (even if the administration ended before the
relevant date), except expenses covered by paragraph (a) of this
subsection and deferred expenses;
- (d)
- if the winding up began within 2 months after the end of a period of
official management of the companynext, debts of the company properly
incurred by an official manager in carrying on the company's business during
the period of official management, except expenses covered by
paragraph (a) of this subsection and deferred expenses;
- (da)
- if the Court ordered the winding upnext, costs and expenses that
are payable under subsection 475(8) out of the company's property;
- (db)
- next, costs that form part of the expenses of the winding up because of
subsection 539(6);
- (dc)
- if the winding up began within 2 months after the end of a period of
official management of the companynext, the remuneration, in respect of
the period of official management, of any auditor appointed in accordance with
Part 2M.4;
- (dd)
- next, any other expenses (except deferred expenses) properly incurred by
a relevant authority;
- (de)
- next, the deferred expenses;
- (df)
- if a committee of inspection has been appointed for the purposes of the
winding upnext, expenses incurred by a person as a member of the
committee;
- (e)
- subject to subsection (1A)next, wages and superannuation
contributions payable by the company in respect of services rendered to the
company by employees before the relevant date;
- (f)
- next, amounts due in respect of injury compensation, being compensation
the liability for which arose before the relevant date;
- (g)
- subject to subsection (1B)next, all amounts due:
- (i)
- on or before the relevant date; and
- (ii)
- because of an industrial instrument; and
- (iii)
- to, or in respect of, employees of the company; and
- (iv)
- in respect of leave of absence;
- (h)
- subject to subsection (1C)next, retrenchment payments payable
to employees of the company.
(1A) The amount or total paid under paragraph (1)(e) to, or in respect
of, an excluded employee of the company must be such that so much (if any) of
it as is attributable to non-priority days does not exceed $2,000.
(1B) The amount or total paid under paragraph (1)(g) to, or in respect
of, an excluded employee of the company must be such that so much (if any) of
it as is attributable to non-priority days does not exceed $1,500.
(1C) A payment under paragraph (1)(h) to an excluded employee of the
company must not include an amount attributable to non-priority days.
(2) In this section:
"company" means a company that is being wound up.
"deferred expenses", in relation to a company, means expenses properly
incurred by a relevant authority, in so far as they consist of:
- (a)
- remuneration, or fees for services, payable to the relevant authority; or
- (b)
- expenses incurred by the relevant authority in respect of the supply of
services to the relevant authority by:
- (i)
- a partnership of which the relevant authority is a member; or
- (ii)
- an employee of the relevant authority; or
- (iii)
- a member or employee of such a partnership; or
- (c)
- expenses incurred by the relevant authority in respect of the supply to
the relevant authority of services that it is reasonable to expect could have
instead been supplied by:
- (i)
- the relevant authority; or
- (ii)
- a partnership of which the relevant authority is a member; or
- (iii)
- an employee of the relevant authority; or
- (iv)
- a member or employee of such a partnership.
"employee", in relation to a company, means a person:
- (a)
- who has been or is an employee of the company, whether remunerated by
salary, wages, commission or otherwise; and
- (b)
- whose employment by the company commenced before the relevant date.
"excluded employee", in relation to a company, means:
- (a)
- an employee of the company who has been:
- (i)
- at any time during the period of 12 months ending on the relevant date; or
- (ii)
- at any time since the relevant date;
or who is, a director of the company;
- (b)
- an employee of the company who has been:
- (i)
- at any time during the period of 12 months ending on the relevant date; or
- (ii)
- at any time since the relevant date;
or who is, the spouse of an employee of the kind referred to in
paragraph (a); or
- (c)
- an employee of the company who is a relative (other than a spouse) of an
employee of the kind referred to in paragraph (a).
"non-priority day", in relation to an excluded employee of a company, means a
day on which the employee was:
- (a)
- if paragraph (a) of the definition of excluded employee
appliesa director of the company; or
- (b)
- if paragraph (b) of that definition appliesa spouse of an
employee of the kind referred to in paragraph (a) of that definition; or
- (c)
- if paragraph (c) of that definition appliesa relative (other
than a spouse) of an employee of the kind referred to in paragraph (a) of
that definition;
even if the day was more than 12 months before the relevant date.
"official manager" includes a deputy official manager.
"relevant authority", in relation to a company, means any of the following:
- (a)
- in any casea liquidator or provisional liquidator of the company;
- (b)
- if the winding up began within 2 months after the end of a period of
official management of the companyan official manager appointed for the
purposes of the official management;
- (c)
- in any casean administrator of the company, even if the
administration ended before the winding up began;
- (d)
- in any casean administrator of a deed of company arrangement
executed by the company, even if the deed terminated before the winding up
began.
"retrenchment payment", in relation to an employee of a company, means an
amount payable by the company to the employee, by virtue of an
industrial instrument, in respect of the termination of the employee's
employment by the company, whether the amount becomes payable before, on or
after the relevant date.
"spouse" includes a de facto spouse.
"superannuation contribution", in relation to a company, means a contribution
by the company to a fund for the purposes of making provision for, or
obtaining, superannuation benefits for an employee of the company, or for
dependants of such an employee.