Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.6 - WINDING UP GENERALLY  

Note: This Part applies to a sub-fund of a CCIV in a modified form: see Division 5 of Part 8B.6 .

Division 6 - Proof and ranking of claims  

Subdivision D - Priorities  

SECTION 556   PRIORITY PAYMENTS  

556(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 up - next, the costs in respect of the application for the order (including the applicant ' s taxed costs payable under section 466 );

(ba)    

if:

(i) during the period of 12 months ending when the winding up commenced, an application (the first application ) was made under section 459P for the company to be wound up in insolvency; and

(ii) when the first application was made, the company was not under administration or restructuring; and

(iii) the company began to be under administration or restructuring at a time after the first application was made; and

(iv) the first application was not withdrawn or dismissed before the administration or restructuring began; and

(v) the Court did not, in response to the first application, make an order under section 459A that the company be wound up in insolvency;

next, the costs in respect of the first application;

(c)    

next:

(i) the debts for which paragraph 443D(a) or (aa) 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; and

(ii) the debts for which paragraph 456J(a) or (b) entitles a restructuring practitioner for the company to be indemnified (even if the restructuring ended before the relevant date), except expenses covered by paragraph (a) of this subsection and deferred expenses;

(d) (Repealed)

(da)    if the Court ordered the winding up - next, costs and expenses that are payable under subsection 475(8) out of the company ' s property;

(daa)    

if the company resolved by special resolution that it be wound up voluntarily - next, costs and expenses that are payable under subsection 446C(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) , or subsection 70-15(5) (audit of administration books by ASIC) or section 90-27 (review by another registered liquidator) of Schedule 2 ;

(dc) (Repealed)

(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 up - next, expenses incurred by a person as a member of the committee;

(e)    

subject to subsection (1A) - next:

(i) wages, superannuation contributions and superannuation guarantee charge payable by the company in respect of services rendered to the company by employees before the relevant date; or

(ii) liabilities to pay the amounts of estimates under Division 268 in Schedule 1 to the Taxation Administration Act 1953 of superannuation guarantee charge mentioned in subparagraph (i);

(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.

556(1AA)    

Paragraph (1)(a) does not apply to expenses:

(a)    incurred by the administrator of a deed of company arrangement; and

(b)    

relating to a debt or claim admissible to proof under paragraph 553(1A)(a) ;

unless the administrator is personally liable for the expenses.

556(1AAA)    

Paragraph (1)(a) does not apply to expenses:

(a)    incurred by the restructuring practitioner for a company; and

(b)    relating to a debt or claim admissible to proof under paragraph 553(1A)(b) ;

unless the restructuring practitioner is personally liable for the expenses.

556(1AAB)    

Paragraph (1)(a) does not apply to expenses:

(a)    incurred by the restructuring practitioner for a restructuring plan; and

(b)    relating to a debt or claim admissible to proof under paragraph 553(1A)(c) ;

unless the restructuring practitioner is personally liable for the expenses.

Superannuation guarantee charge

556(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.

556(1AB)    

For the purposes of paragraph (1)(e), if:

(a)    the company has a superannuation guarantee shortfall for a quarter; and

(b)    the shortfall relates to one or more employees; and

(c)    the quarter ends before the relevant date;

superannuation guarantee charge in respect of the quarter is taken to be payable by the company in respect of services rendered to the company by those employees before the relevant date.

556(1AC)    

If:

(a)    the company has a superannuation guarantee shortfall for a quarter; and

(b)    the shortfall relates to one or more employees; and

(c)    the relevant date occurs during the quarter; and

(d)    the relevant date is not the first day of the quarter;

then:

(e)    for the purposes of paragraph (1)(e), so much of the superannuation guarantee charge in respect of the quarter as is attributable to the period before the relevant date is taken to be payable by the company in respect of services rendered to the company by those employees before the relevant date; and

(f)    the remainder of the superannuation guarantee charge in respect of the quarter is taken:

(i) to be an expense referred to in paragraph (1)(a); and

(ii) not to be an amount of superannuation guarantee charge referred in paragraph (1)(e).

556(1AD)    

If:

(a)    the company has a superannuation guarantee shortfall for a quarter; and

(b)    the shortfall relates to one or more employees; and

(c)    the relevant date is the first day of the quarter;

the superannuation guarantee charge in respect of the quarter is taken:

(d)    to be an expense referred to in paragraph (1)(a); and

(e)    not to be an amount of superannuation guarantee charge referred in paragraph (1)(e).

556(1AE)    

For the purposes of paragraph (1)(e), if:

(a)    the company has a superannuation guarantee shortfall for a quarter; and

(b)    the shortfall relates to one or more employees; and

(c)    the quarter begins after the relevant date; and

(d)    one or more payments were made by the company during the quarter on account of wages payable to those employees in respect of services rendered to the company by those employees before the relevant date; and

(e)    those payments were made as a result of an advance of money by a person after the relevant date for the purpose of making those payments;

then:

(f)    for the purposes of paragraph (1)(e), so much of the superannuation guarantee charge in respect of the quarter as is attributable to those payments is taken to be payable by the company in respect of services rendered to the company by those employees before the relevant date; and

(g)    the remainder of the superannuation guarantee charge in respect of the quarter is taken:

(i) to be an expense referred to in paragraph (1)(a); and

(ii) not to be an amount of superannuation guarantee charge referred in paragraph (1)(e).

556(1AF)    

If:

(a)    the company has a superannuation guarantee shortfall for a quarter; and

(b)    the shortfall relates to one or more employees; and

(c)    the relevant date occurs during the quarter; and

(d)    one or more payments were made by the company during the quarter on account of wages payable to those employees in respect of services rendered to the company by those employees before the relevant date; and

(e)    those payments were made as a result of an advance of money by a person after the relevant date for the purpose of making those payments;

then:

(f)    for the purposes of paragraph (1)(e), so much of the superannuation guarantee charge in respect of the quarter as is attributable to either or both of the following:

(i) those payments;

(ii) the period before the relevant date;

is taken to be payable by the company in respect of services rendered to the company by those employees before the relevant date; and

(g)    the remainder of the superannuation guarantee charge in respect of the quarter is taken:

(i) to be an expense referred to in paragraph (1)(a); and

(ii) not to be an amount of superannuation guarantee charge referred in paragraph (1)(e); and

(h)    subsections (1AC) and (1AD) do not apply to the superannuation guarantee charge in respect of the quarter.

556(1AG)    

Subsections (1AC) to (1AF) apply to a liability to pay the amount of an estimate of superannuation guarantee charge for a quarter in the same way as they apply to superannuation guarantee charge payable for the quarter.

Leave amounts

556(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.

Retrenchment payments

556(1C)    
A payment under paragraph (1)(h) to an excluded employee of the company must not include an amount attributable to non-priority days.

Definitions

556(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 applies - a director of the company; or

(b) if paragraph (b) of that definition applies - a spouse of an employee of the kind referred to in paragraph (a) of that definition; or

(c) if paragraph (c) of that definition applies - a 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
(Repealed by No 132 of 2007, s 3, Sch 5 [ 12].)

quarter
has the same meaning as in the Superannuation Guarantee (Administration) Act 1992 .

relevant authority
, in relation to a company, means any of the following:

(a) in any case - a liquidator or provisional liquidator of the company;

(b) (Repealed)

(c) in any case - an administrator of the company, even if the administration ended before the winding up began;

(d) in any case - an administrator of a deed of company arrangement executed by the company, even if the deed terminated before the winding up began;

(e) in any case - a restructuring practitioner for the company, even if the restructuring ended before the winding up began;

(f) in any case - a restructuring practitioner for a restructuring plan made by the company, even if the plan 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
(Repealed by No 144 of 2008, s 3, Sch 14, Pt 3 [ 148].)

superannuation contribution
, in relation to a company, means a contribution by the company to a fund or scheme for the purposes of making provision for, or obtaining, superannuation benefits (including defined benefits) for an employee of the company, or for dependants of such an employee.