The case concerned the statutory priority under s 433 of the Corporations Act 2001 (Cth) when the company being wound up acted as a corporate trustee of trust. Amerind Pty Ltd (Amerind) carried on business solely as a trustee of the Panel Veneer Processing Trust. In support of the activities of the trust, Amerind took out credit facilities with Bendigo and Adelaide Bank (the Bank), who took security against Amerind’s assets. Amerind in turn defaulted on its obligations under the credit facilities, and the Bank appointed receivers and managers to recover the debt. Following the process of realising assets, the Bank was fully paid out, and after remuneration was paid to the Receivers, there was a remaining amount of approximately $1.6 million. The Commonwealth sought the benefit of the legislative priority in favour of employees under s 433 of the Act. The Commonwealth had paid funds to employees of Amerind under the Fair Entitlements Guarantee Scheme, and was thus subrogated to the rights of employees. At first instance, a judge of the Supreme Court held that s 433 was not engaged, because that section only operated against “property of the company” or “comprised in or subject to a circulating security interest”. The trial judge considered that the trustee had no assets of its own and only had a right of indemnity. His Honour held that the existence of the right of indemnity did not make assets held on trust property of the corporate trustee. The Court of Appeal overturned the trial judge’s decision, and the High Court upheld the decision of the Court of Appeal. The High Court unanimously held that a corporate trustee’s interest in and in relation to trust assets fell within the meaning of the term ‘property of the company’ in s 433 of the Act. And insofar as the underlying assets were circulating assets, the corporate trustee’s interest in those assets engaged s 433.
