Gerah Imports Pty Ltd v Duke Group Ltd (in liq)
[2004] SASC 178
•17 June 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
GERAH IMPORTS P/L v THE DUKE GROUP LTD (IN LIQ)
Judgment of The Full Court
(The Honourable Justice Mullighan, The Honourable Justice Nyland and The Honourable Justice Anderson)
17 June 2004
CORPORATIONS - WINDING UP - LIQUIDATORS - RIGHTS AND POWERS - IN WINDING UP BY COURT
Liquidation of company assets following winding up order - surplus assets - post-liquidation interest claim by creditors - whether s439(1) Companies (South Australia) Code 1981 bars claim - whether common law rights for creditors remain.
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - RULES OF CONSTRUCTION
Statutory interpretation - Second Reading Speeches, where meaning ambiguous or uncertain.
Companies (South Australia) Code 1981 s438, s439; Companies Act 1962 (SA) s291; Companies Act Amendment Act 1979 (SA) 291(3); Corporations Law 1991 s554; Corporations Law 2001 s554, s563; Acts Interpretation Act 1915 (SA) s22, referred to.
MacKenzie v Rees (1941) 65 CLR 1; Burch v South Australia (1998) 71 SASR 12; Farrow Finance Company Ltd (In Liq) v ANZ Executors and Trustee Company Ltd and Others [1998] 1 VR 50; Re Spedley Securities Ltd (In Liq) (2000) 34 ACSR 689; Re Emilco Pty Ltd (In Liq) (2002) 43 ACSR 536; Triden Contractors Pty Ltd v CE Heath Casualty and General Insurance Ltd (1996) 9 ANZ Ins Cas 61-356, applied.
Midland Montagu Australia Ltd v Harkness & Ors (1994) 35 NSWLR 150; H&S Credits Ltd (In Liq) (1969) 90 WN (Pt1) (NSW) 495, discussed.
Re Pullins of Newcastle Pty Ltd (1966) 85 WN (Pt1) (NSW) 16; Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 177; Re Carpark Industries Pty Ltd (1967) 86 WN (Pt 1) (NSW) 165; Rivers v Rivers and Others (2002) 84 SASR 426; Potter v Minahan (1908) 7 CLR 277; The American Dairy Queen (QLD) Pty Ltd v Blue Rio Limited and Others (1981) 147 CLR 677; Standard Chartered Bank of Australia Ltd v Antico (1995) 131 ALR 1; Re Tahore Holdings Pty Ltd [2004] NSWSC 397, considered.
GERAH IMPORTS P/L v THE DUKE GROUP LTD (IN LIQ)
[2004] SASC 178Full Court: Mullighan, Nyland and Anderson JJ
MULLIGHAN J I agree that the questions should be answered as proposed by Anderson J for the reasons which he has given.
NYLAND J I agree with the reasons of Anderson J and the answers to the questions proposed by him.
ANDERSON J This is a special case reserved for the consideration of the Full Court pursuant to Rule 72.04 of the Supreme Court Rules.
Agreed Facts
The agreed facts are set out hereunder:
“3.An order was made to wind up, and Mr John Sheahan was appointed as the liquidator of, The Duke Group Limited (In Liquidation) (“TDGL”) on 11 July 1989.
4.In the course of his responsibilities as liquidator Mr Sheahan has carried out extensive investigations, realised all of the tangible assets of TDGL and made significant recoveries from the pursuit of legal claims identified by him as being available to TDGL.
5.By reason of those recoveries Mr Sheahan made various distributions to creditors in relation to debts claimed to be owing as at the relevant date, culminating in a final dividend paid in January 2000. Annexure 1 is a schedule of the dividend payments made by the liquidator. [This is attached at the end of these reasons].
6.By reason of the payments referred to in the preceding paragraph all creditors of TDGL have been paid in full in relation to their proven debts as at the relevant date (11 July 1989).
7.Following payment in full of all proven debts owed to creditors of TDGL as at the relevant date, there remains a surplus, currently estimated to be approximately $30 million.
8.On 5 April 2000, after the last dividend was paid to creditors and it had become clear that the liquidation was likely to result in a surplus, Mr Sheahan wrote to the creditors of TDGL advising them of the possibility of payments for post liquidation interest and requesting that they provide him with further proofs of debt in relation to post liquidation interest to 31 March 2000.
9.Annexure 2 to this special case is a document setting out the amounts claimed by creditors of TDGL as at 31 March 2000 including by way of post-liquidation interest, and the amounts admitted or assessed by Mr Sheahan as liquidator. The total of the amounts so assessed is approximately $37.4 million. [This is attached at the end of these reasons].
10.Genoa Resources & Investments Limited (in liquidation) (“GRAIL”) and LFD Limited (formerly Dalgety Farmers Limited) (“LFD”) have been admitted to proof as creditors in the winding up of TDGL pursuant to identical loan facility agreements which provide for the payment of interest.
11.By reason of the anticipated surplus, each of GRAIL and LFD has lodged further claims since the relevant date pursuant to their respective loan facility agreements. As Annexure 2 shows:
(a) GRAIL has lodged a claim including for post-liquidation interest to 31 March 2000 in the total amount of $17,071,594.10, of which $12,633,463.65 has been admitted by the liquidator;
(b) LFD has lodged a claim including for post-liquidation interest to 31 March 2000 in the total amount of $19,586,215.02, of which $14,326,366.92 has been admitted by the liquidator.
12.Together, GRAIL’s and LFD’s claims represent approximately 70% of the claims assessed as at 31 March 2000 and they also claim interest for the period thereafter.
13.Duke Holdings Limited (in liquidation) (“DHL”) is TDGL’s major shareholder, with 43.99% of the shares in TDGL. It will submit to the Court that post-liquidation interest is not payable, and that any surplus in TDGL’s liquidation should therefore be distributed to shareholders.”
Case Stated
Upon the facts stated in paragraphs 3 to 13 above, the following special case is reserved for the consideration of the Full Court pursuant to Rule 72.04 of the Supreme Court Rules:
“1.Does section 439(1) of the Companies (South Australia) Code (“the Code”) bar claims to post-liquidation interest by creditors who have a contractual or statutory right to interest at an agreed or specified rate for a period extending beyond the relevant date for the purposes of section 439(1) of the Code (“the relevant date”)?
2.If no to question 1, is the liquidator entitled to deal with claims for post-liquidation interest in accordance with the principles set out in paragraph 30 of the affidavit of John Sheahan sworn 25 June 2003?”
Paragraph 30 referred to above is set out hereunder:
“30. As referred to above I also received written advice from Mr Karkar QC (JS-4) in relation to whether I am obliged to pay post liquidation interest and the general principles applicable to adjudicating on such claims. In summary the advice was to the following effect:
30.1Traditionally the common law of insolvency has been treated as governing second round proof of debt regimes which have permitted creditors “in respect of interest bearing debts to claim against the surplus upon the accounting hypothesis that the winding up had never occurred and that therefore, all sums received by such creditors could be accounted for according to the applicable contractual regime governing the debt, notwithstanding the basis for proof applied in the winding up process in insolvency previously applied by the liquidator.”
30.2The principles applicable to second round proofs of debt are those found in Bower v Marris (1841) 41 ER 525, Re Humber Ironworks and Shipbuilding Company (1868-69) 4 Ch App 643, Re Joint Stock Discount Co (1869-70) LR 5 Ch App 88 and Midland Montagu Aust Ltd v Harkness (1994) 35 NSWLR 150 per McLelland CJ. Mr Karkar QC quotes in Re Humber Ironworks and Shipbuilding Company per Selwyn LJ: “… the account must, in the event of there being an ultimate surplus, be taken as between the company and the creditors in the ordinary way; that is, in the manner pointed out in Bower v Marris, by treating the dividends as ordinary payments on account, and applying each dividend, in the first place, as to payment of the interest due at the date of such dividend, and the surplus (if any) to the reduction of the principal. That disposes of the question where there is a surplus, as to which there is no doubt or difficulty.”
30.3The common law rule as to the second round proofs in liquidation seems to have been accorded a form of statutory recognition in corporation legislation in Australia in sections 437, 438 and 439 of the Code.
30.4Section 439 of the Code does not affect any change to the position at common law.
30.5Creditors whose contracts provide for payment of interest are entitled to be paid interest in the second round of proofs.
30.6The interest payable is per the principles in Bower v Marris and Re Humber Ironworks, “namely by treating the dividends as ordinary payments on account, and applying each dividend, in the first place, as to the payment of interest due at the date of such dividend, and the surplus (if any) to the reduction of the principal.””
On the hearing of this matter before the Full Court, TDGL was represented by senior counsel as were GRAIL and LFD as intervenors, together with DHL as another intervenor.
The argument concerned the interpretation of s 439(1) of the Companies (South Australia) Code 1981 (“the Code”) which was the relevant legislation in force at the relevant time, namely 11 July 1989. The argument was whether s 439(1) of the Code provided a bar to creditors’ entitlements to post-liquidation interest.
Before dealing with the arguments presented, I will set out a brief history of the predecessors and the successor to s 439(1) of the Code. This history has been conveniently collected and presented to the Court as a bundle of the relevant legislation at different times. The section in the Companies Act 1962 (South Australia) which dealt with the proof and ranking of claims was s 291 which is set out hereunder:
“291.(1) In every winding up, subject in the case of insolvent companies to the application in accordance with the provisions of this Act of the law of the Commonwealth relating to bankruptcy, all debts payable on a contingency and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made so far as possible of the value of such debts or claims as are subject to any contingency or sound only in damages or for some other reason do not bear a certain value.
(2) Subject to section 292, in the winding up of an insolvent company the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and debts provable and the valuation of annuities and future and contingent liabilities as are in force for the time being under the law of the Commonwealth relating to bankruptcy in relation to the estates of bankrupt persons, and all persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company may come in under the winding up and make such claims against the company as they respectively are entitled to by virtue of this section.”
That Act was amended by the Companies Act Amendment Act, 1979 (South Australia) by the insertion of subsection (3) in s 291 to read as follows:
“(3) The amount of a debt of a company (including a debt that is for, or includes, interest) is to be computed for the purposes of the winding up –
(a) where the winding up is a winding up under an order of the Court of a company that has not previously commenced to be wound up voluntarily – as at the date of the order for winding up; or
(b) in any other case – as at the date of the commencement of the winding up.”
It is noted that the wording of the amendment in 1979, as set out above, including interest in the computation for the purposes of the winding up.
The next legislative step was the enactment of the Companies Code and sections 438 and 439 as to the proof of debts and the computation of debts. Section 438 reads:
“PROOF OF DEBTS
438(1) [Debts admissible to proof] In every winding up, subject in the case of insolvent companies to the application in accordance with the provisions of this Code of the Bankruptcy Act 1966, all debts payable on a contingency and all claims against the company (present or future, certain or contingent, ascertained or sounding only in damages) are admissible to proof against the company, a just estimate being made so far as possible of the value of such debts or claims as are subject to any contingency or sound only in damages or for some other reason do not bear a certain value.
438(2) [Application of Bankruptcy Act 1966] Subject to sections 204 and 441, in the winding up of an insolvent company the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and debts provable and the valuation of annuities and future and contingent liabilities as are in force for the time being under the Bankruptcy Act 1966, in relation to the estates of bankrupt persons, and all persons who in any such case would be entitled to prove for and receive dividends out of the property of the company may come in under the winding up and make such claims against the company as they respectively are entitled to by virtue of this section.”
Section 439 reads:
“COMPUTATION OF DEBTS
439(1) [Computation as at relevant date] The amount of a debt of a company (including a debt that is for or includes interest) is to be computed for the purposes of the winding up as at the relevant date.
439(2) [Exception] Sub-section (1) does not apply to an amount required to be paid under sub-section 442(1).”
The section was in turn replaced by s 554 of the Corporations Law 1991 in identical terms:
“554(1) [Relevant date] The amount of a debt or claim of a company (including a debt or claim that is for or includes interest) is to be computed for the purposes of the winding up as at the relevant date.”
Finally to complete the picture, in 2001 the Corporations Act provided in s 554(1) essential identical wording to the 1991 Act set out above. This Act also included a section relating to interest on debts and claims from the relevant date to the date of payment in s 563B, which is set out below:
“563B(1) [Interest at prescribed rate debt in winding up] If, in the winding up of a company, the liquidator pays an amount in respect of an admitted debt or claim, there is also payable to the debtor or claimant, as a debt payable in the winding up, interest, at the prescribed rate, on the amount of the payment in respect of the period starting on the relevant date and ending on the day on which the payment is made.
563B(2) [[Postponement of payment of interest] Subject to subsection (3), payment of the interest is to be postponed until all other debts and claims in the winding up have been satisfied, other than debts owed to members of the company as members of the company (whether by way of dividends, profits or otherwise).”
In relation to the legislation in force at the time there are two Second Reading Speeches which were emphasised by counsel for TDGL. I will turn to these later.
The company in liquidation was wound up on 11 July 1989 and it is agreed that the relevant legislation is the Companies (South Australia) Code.
The question therefore raised in the case stated is whether the liquidator can pay interest on interest bearing debts either because interest is payable pursuant to a contract or because there is a relevant statute, after the commencement of the winding up.
There was a rule at common law which allowed for what has been called “a second round of proofs” where there was a surplus after payment of all debts and interest proved in the normal way as at the commencement of the winding up.
The judgment of Dixon J (as he then was) in MacKenzie v Rees (1941) 65 CLR 1 is a convenient summary of the law. This case did involve a surplus over and above the amount of the proved debts. Some creditors held promissory notes entitling them to interest.
His Honour said (at 8):
“It has been a principle of English bankruptcy law, since the time at all events of Lord King, that no proof should be allowed for interest accruing after the commencement of the bankruptcy, even upon interest-bearing debts (Viner’s Abridgment, vol. 7, p. 110, Lord King; Ex parte Bennet (1743) 2 Atk 527 [26 ER 716], Lord Hardwicke). But if there were a surplus then intermediate interest might be allowed as against the debtor. If, according to the tenor of the obligation, a debt bore interest, the debtor could not obtain the surplus until interest accruing after the commencement of the bankruptcy had been met thereout (Bromley v Goodere (1743) 1 Atk 75 [26 ER 49]).
The rule and the qualification had their origin in the fact that the earlier bankruptcy laws excluded future debts alike from proof against the assets and from the relief those laws gave the debtor by the discharge of the debtor’s accrued debts. Future interest not accrued at the act of bankruptcy or other commencement of the bankruptcy was not a debt provable, and therefore interest stopped at that event for the purposes of proof. Correspondingly, the debtor was not discharged from his liability to such interest, and it was therefore equitable that it should be deducted from the surplus before it was paid over to him: Cf. Ex parte Mills (1793) 2 Ves Jun at 301 [30 ER 643], Lord Loughborough. But afterwards changes were made in the statutory provisions, and the reasons for the rules about interest were placed on quite different grounds.
The principal rule, namely, that excluding intermediate interest from proof, came to be regarded as a rule of convenience in administration, as a practice of the Court of Bankruptcy designed to secure equality and justice among creditors where there was a deficiency. Thus, in Ex parte Kensington; Re Lancaster (1835) 2 Mont. & Ay. 300, at 305, Sir George Rose says: “The rule that interest stops at the bankruptcy is not a rule of law nor of equity; it is the practice in bankruptcy, adopted for convenience, as any other course might lead to many difficulties.” In Re Browne & Wingrove; Ex parte Ador (1891) 2 QB at 581, Lindley LJ says: “The rule which prevents proof for future interest is not a positive enactment, it is rather a rule of convenience.”
Dixon J went on to say (at 10):
“But it is possible, I think, to give effect both to the principle and to the form in which the legislation is cast by treating the principle as one determining the order in which debts are to be discharged in the course of administration; that is, by accepting the more modern view that the rule is one of justice and convenience, as opposed to the earlier view that it depended upon the exclusion of future interest from proof and also from the release or discharge given to the debtor.”
We were referred to a decision by McLelland CJ in Eq namely, Midland Montagu Australia Ltd v Harkness & Ors as an example of the application of the rule explained by Dixon J in Mackenzie v Rees. McLelland CJ said (at 164):
“One of the premises upon which this rule is based is the proposition that neither bankruptcy nor winding up, as such, effects a discharge of a debtor’s liability for future interest, although each limits the means by which, and the assets against which, such a liability may be enforced.”
Counsel for TDGL emphasised the difference between a substantive rule of law and the rule of convenience described in the cases. As he pointed out, the history of the way a surplus was dealt with and the law which was applied in cases where there was a surplus was not a matter of dispute. It is only because of the enactment of s 439(1) that any dispute has arisen. Put simply, did the enactment of that section alter the common law position applied consistently over many years?
We were referred to a decision of Street J (as he then was) in H & S Credits Ltd (In Liquidation) (1969) 90 WN (Pt 1)(NSW) 495. In that decision Street J was dealing with the question of proof in a winding up by the court of an insolvent company. The presentation of the petition to wind up was presented on 30 March 1961. The winding up order was made on 30 May 1961. As the headnote states:
“Between these two dates some forty-two creditors supplied goods or services to the company in respect of which in due course they lodged claims amounting to some $3,697. In addition, debenture holders and depositors claimed interest accruing between these two dates, which, computed at the statutory maximum rate of eight per cent per annum, amounted to $35,241.”
It was held that it would be directed that the date as at which debts are to be computed for the purposes of proof in the winding up by the court of an insolvent company is the date of the winding up order, and not the date of presentation of the petition. It was held secondly that this direction was administrative and did not amount to a judicial determination of the problem. Thirdly it was held that it would be directed that the relevant date of proving interest was the date of the statutory commencement of the winding up, that is to say the date of presentation of the petition.
Street J dealt with what he called “an anomaly” in his judgment in the course of a discussion of three cases. These were Re Pullins of Newcastle Pty Ltd (1966) 85 WN (Pt 1) (NSW) 16; Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 177 and Re Carapark Industries Pty Ltd (1967) 86 WN (Pt 1) (NSW) 165.
His Honour then dealt with matters arising and causing difficulties for liquidators and indicated that the direction that he was giving to the present liquidator was of an administrative character and did not amount to a judicial determination of the problem. His Honour said (at 499):
“I am aware that the doubts on these matters have occasioned and are occasioning difficulties to liquidators. These reasons and the direction I shall give to the present liquidator are of an administrative character – they do not amount to a judicial determination of the problem. Until there is such a determination or the legislature intervenes the law to be applied by liquidators may be summarized as follows: 1. Debts are to be computed for purposes of proof at the date of the winding-up order. 2. Where any provable debt includes an amount which was due at the date of the petition of a type accorded by s 292(1) priority expressly related to the commencement of the winding up, then that amount of proved debt will have priority. The relevant date for determining the amount entitled to priority is the date of the petition. 3. Where a question arises for examining, for purposes of s 294(2), whether a charge is a floating charge the relevant date is the date of the winding-up order.”
His Honour then dealt with the claims for interest and said (at 500):
“Claims for interest. The date as at which interest is provable in a winding up stands in a separate and, as it seems to me, a somewhat anomalous category. Moreover, the authorities on this aspect do not point the way as clearly as one might wish.”
After a review of the various decisions and textbooks his Honour then concluded (at 503):
“The liquidator ought, in my view, to treat as the relevant date for proving interest the date of the statutory commencement of the winding up. In stating this view, however, I desire to say expressly that I am deferring to precedent rather than to principle and reason. It is anomalous, and without logical or practical justification, that interest should be separated from other claims in the selection of the date for proof. The English approach involves what is in my view an unwarranted departure from the ordinary principles applied in bankruptcy: interest is proved in a bankruptcy as at the date of the sequestration order. But, for the purposes of liquidators conducting windings up, the law must at this stage be taken to be that interest is to be proved as at the statutory commencement of the winding up.”
And so it is put to us that amendments were then made to the various State legislation to solve the anomaly referred to by Street J.
It is not disputed before us that we can have regard to Second Reading Speeches even if it is the case that the words of the section are on their face plain and unambiguous. The authorities put to us during the course of argument include a decision of the Full Court of this Court in Burch v South Australia (1998) 71 SASR 12. In particular at page 14 the headnote summarises the decision on this aspect as follows:
“The common law does not make it a condition that there be an ambiguity in the text of an Act before a court can have regard to extrinsic materials as an aid to its construction.”
Cox J at pages 17 and 18 deals with general principle and refers to s 22 of the Acts Interpretation Act 1915 (SA) which reads:
“22(1)Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.”
Cox J also said:
“As I have indicated, it is probably correct to say that, at the time s 22 was refashioned, the prevailing view in Australian courts was that the purpose of an Act could only be taken into account where there was an ambiguity or inconsistency on the face of the legislation. See, for example, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 305 and Mills v Meeking (1990) 169 CLR 214 at 223, 235. Section 22 was meant to liberate the common law, not to restrict it. Secondly, the section does not state that the purpose or object of an Act may only be considered where the provision being construed is reasonably open to more than one construction. It simply says what is to be done when that is the case. It would be strange if the mischief rule could not be used where there is no apparent ambiguity but a literal interpretation would lead to inconsistency or injustice. Finally, s 22 says nothing about the way in which the purpose or object of an Act is to be discerned – in particular, whether the interpreter is confined to the Act itself. It merely provides that the interpreter is not restricted to an express statement on the matter in the Act. The section does not, certainly in terms, qualify the established practice whereby a court applying the common law mischief rule could have regard to the legislative history of an Act or other relevant material.”
Other relevant cases on the same principle include another decision of this Court in Rivers v Rivers and Others (2002) 84 SASR 426; Potter v Minahan (1908) 7 CLR 277 and The American Dairy Queen (QLD) Pty Ltd v Blue Rio Limited and Others (1981) 147 CLR 677.
In the Second Reading Speech in New South Wales on 9 September 1971 the Minister said in referring to the amendment (at 936):
“New subsection (3) of section 291 settles the doubtful question of law as to the point of time to which interest may be allowed on a debt for the purpose of proof of debt.”
In the South Australian Parliament the Minister on 8 February 1979 was somewhat more positive in stating (at 2481):
“Clause 205 amends section 291 of the principal Act. New subsections numbered (3) and (4) are inserted to bring the section into conformity with corresponding interstate legislation. These subsections lay down formulae for computing the debts of insolvent companies.”
In my view the Second Reading Speeches tend very much to support the argument advanced by Mr Karkar QC before us. In other words, on its face, s 439(1) deals with the computation of debts for the purpose of proof and does not in any way intend to vary or diminish the common law entitling creditors in the event of a surplus to recover post-liquidation interest.
As against this, DHL say that s 439(1) is unambiguous and that the operation of the plain words of that section does not lead to a result which is so absurd, capricious or irrational that the legislature could not have intended such an operation. They say that it is not possible on the Second Reading Speeches to identify a clear legislative purpose and to treat s 439(1) consistently with its plain meaning. In my view the Second Reading Speech in South Australia is very instructive. As the Speech states “these subsections lay down formulae for computing the debts of insolvent companies”.
The submissions of DHL developed the history of the common law of bankruptcy and “second round proofs”. There really is little dispute between the parties on this.
It is submitted on behalf of DHL that s 439(1) applies to all debts including interest. It is submitted that it is not limited to the winding up of an insolvent company as distinct from s 438 which specifically refers to the winding up of an insolvent company.
It is further submitted that the ordinary meaning of the words in s 439(1) gives rise to a certain result which is applicable to every mode of winding up. It is said that is in harmony with the scheme or structure of part XII of the code as a whole.
One answer to the submissions by DHL to the question of statutory interpretation, apart from their construction point, on the plain words of the section, is that since the enactment of s 439(1), Australian courts have continued to apply the principle of second round proofs and TDGL give examples of these decisions. One such example is the decision in Midland Montagu already referred to.
Other decisions supporting this contention are Standard Chartered Bank of Australia Limited v Antico (1995) 131 ALR 1 at 125, Farrow Finance Company Ltd (In Liquidation) v ANZ Executors and Trustee Company Ltd & Others [1998] 1 VR 50 at 71-72 and Re Spedley Securities Ltd (In Liquidation) (2000) 34 ACSR 689 at 692 per Windeyer J.
In Re Spedley, Windeyer J said (at 692):
“Debts provable in the liquidation were those existing at the date of winding up … . However, if there is a surplus – meaning moneys available after debts at date of winding up are paid in full – then creditors are entitled to prove for post-liquidation interest because they are returned to their contractual rights. The liquidator must discharge those rights, so far as he is able, if and after provable debts have been paid in full … .”
There is a similar statement in the judgment of Barrett J in Re Emilco Pty Ltd (In Liq) (2002) 43 ACSR 536 at 540 where his Honour said:
“Whether the company is solvent or insolvent, the right to prove is a right referable to the state of its indebtedness as at the commencement of the winding up, while any question of entitlement to interest accruing after that commencement falls to be dealt with separately once it becomes clear (assuming that it does) that there is a surplus after satisfaction of provable claims as they existed at commencement and are afterwards admitted.”
I gratefully adopt both these statements of their Honours.
After judgment in this matter was reserved the court was referred to another decision of Barrett J in Re Tahore Holdings Pty Ltd [2004] NSWSC 397 delivered on 12 May 2004.
His Honour referred to his decision in Re Emilco and also the decision of Windeyer J in Re Spedley and emphasised that any references to contractual interest did not limit the decision to contractual interest but applied equally to “interest payable by virtue of some other legally binding obligation”, to use the words of Barrett J in Tahore (at 11).
Particular emphasis was placed on the decision of Triden Contractors Pty Ltd v CE Health Casualty and General Insurance Ltd (1996) 9 ANZ Ins Cas 61-356 a decision of the Supreme Court of New Wales Court of Appeal. In this case there was interest payable under a statute, namely, the Supreme Court Act 1970 and Sheller JA with whom the other two judges of the Court of Appeal agreed said: discussing the effect of the winding up of the company in question (at 76,944):
“That consequence was not, in my opinion, affected by the rule of convenience in bankruptcy whereunder a creditor is not entitled to prove for interest accruing after the commencement of the winding up. Dixon J discussed this rule in MacKenzie v Rees (1941) 65 CLR 1 at 8 and following; see Midland Montagu Australia Limited v Harkness (1994) 35 NSWLR 150 at 164 and following, s 82(3B) of the Bankruptcy Act 1966 and McDonald, Henry & Meek, Australian Bankruptcy Law & Practice, 5th ed, paras 384 and 497. The rule is one adopted for the just and convenient administration of the assets of a bankrupt estate or a company in liquidation between creditors entitled to prove. In the words of Giffard LJ in In re Joint Stock Discount Company (Warrant Finance Company’s Case) (1869) LR 5 Ch App 86 at 88, the rule “is not meant at all to interfere with the rights of the creditor, if he can get payment from other sources, to combine and retain all that he can obtain from all those sources until he is paid not only his principal but all his interest, and so the debt is entirely satisfied.” The winding up did not discharge Timalco from its liability under s 95(1) of the Supreme Court Act to pay interest to the extent that could be paid from other sources, in is [sic] case, the insurance moneys charged.”
There is also a decision of Hansen J in Farrow Finance Company Ltd (In Liquidation) v ANZ Executors and Trustee Company Ltd & Others [1998] 1 VR 50 where the question of post-liquidation interest is dealt with by his Honour (at 60):
“Before turning to outline the parties’ submissions, I should say something about the general principles concerning a creditor’s entitlement to post-liquidation interest in circumstances where the debtor company is in liquidation. By “post-liquidation interest” I mean interest on an interest bearing debt owed by a company in liquidation which accrues after the date that the company is ordered to be wound up. It is, in my view, beyond doubt (and indeed was common ground) that a company in liquidation remains liable for interest on interest-bearing debts even after the date of the winding up order. The provisions of the Corporations Law (ss. 553 and 554) which preclude a creditor from proving in a liquidation for post-liquidation interest do not affect the company’s liability for such interest. Those sections provide that where a company in liquidation owes an interest-bearing debt, the creditor to whom the debt is owed cannot prove for interest accrued in any period commencing on or after the date of the winding up order (or other relevant date according to ss. 513A and 513B). The creditor’s entitlement to post-liquidation interest is not extinguished by the law, but such interest is only payable after all other debts and claims in the winding up have been satisfied (s. 563B): see Midland Montagu, which in turn was recently approved on this point by the New South Wales Court of Appeal in Triden Contractors Pty Ltd v C.E. Heath Casualty and General Insurance Ltd (unreported, 25 October 1996) at 14-15. I turn now to consider the central issues.”
Section 554 of the Corporations Law as discussed by Hansen J is the equivalent of s 439(1) of the Code relevant in this matter.
It seems to me that there are three factors which are the most influential in the interpretation of s 439(1). In my view, these factors are:
(a)the characterisation of the section in the way advanced by counsel for the liquidator, namely as providing a rule of convenience which accords with common sense and the need for efficient administration;
(b)on ordinary principles of statutory construction and having regard particularly to the Second Reading Speech in South Australia, the section lays down a formula for computing the debts of insolvent companies; and
(c)the continued application of the same common law principles as to second round proofs and the discussions on interest by various courts since the enactment and in particular the fact that there is a NSW Court of Appeal decision relevant to the matter, namely, Triden Contractors Pty Ltd v CE Heath Casualty and General Insurance Ltd.
It is my view therefore that the introduction of s 439(1) was never intended to alter the common law position. If it had been so intended, the Second Reading Speech in South Australia would have said so rather than clearly pointing in the opposite direction. In short, I do not think there was any legislative intent to modify or vary the notion of second round proofs and the right to claim post-liquidation interest by creditors who have a contractual or statutory right to interest by the enactment of s 439(1). All the section did, as counsel for TDGL put it, “was to make clear in statutory form what the rule of convenience in respect of proofs should be, where the line should be drawn for the convenient administration of the liquidation. It expressly did not deal with liability for, or entitlement to interest. It dealt with calculation or computation of interest for the purposes of proof.”
I agree with that statement by counsel.
In relation to the case stated I would therefore answer as follows:
Question 1 – No.
Question 2 – Yes.
Annexure 1
THE DUKE GROUP LIMITED (IN LIQUIDATION)
SCHEDULE OF DIVIDEND PAYMENTS
Date Creditor Payments Total Paid Admitted ANZ01 ANZ Bank 41,163.18 30/09/1992 200002 First Dividend 6,791.92 01/03/1993 200142 Second Dividend 6,174.48 25/08/1993 200202 Third Dividend 2,881.42 08/02/1994 200326 4th Dividend 7,409.37 18/03/1994 200382 5th Dividend 5,557.03 17/01/2000 300449 6th Dividend 12,348.96 Balance 0.00 41,163.18 41,163.18 ASE01 Australian Stock Exchange (Adel) Ltd 16,321.49 30/09/1992 200003 First Dividend 2,693.05 01/03/1993 200143 Second Dividend 2,448.22 25/08/1993 200203 Third Dividend 1,142.50 08/02/1994 200327 4th Dividend 2,937.87 18/03/1994 200383 5th Dividend 2,203.40 17/01/2000 300413 6th Dividend 4,896.45 Balance 0.00 16,321.49 16,321.49 AUG01 Mr C August 21,169.21 01/03/1993 200144 Second Dividend 3,175.38 17/03/1993 017033 First Dividend 3,492.92 25/08/1993 200204 Third Dividend 1,481.84 08/02/1994 200328 4th Dividend 3,810.46 18/03/1994 200384 5th Dividend 2,857.84 17/01/2000 300443 6th Dividend 6,350.77 Balance 0.00 21,169.21 21,169.21 BAR01 Barker Gosling 25,153.69 24/02/1993 200139 First Dividend 4,150.36 01/03/1993 200145 Second Dividend 3,773.05 25/08/1993 200205 Third Dividend 1,760.76 08/02/1994 200329 4th Dividend 4,527.66 18/03/1994 200459 5th Dividend 3,395.75 17/01/2000 300414 6th Dividend 7,546.11 Balance 0.00 25,153.69 25,153.69 BOU01 Bouris Dowd & Vince 14,271.90
Date Creditor Payments Total Paid Admitted 30/09/1992 200004 First Dividend 2,354.86 01/03/1993 200146 Second Dividend 2,140.79 25/08/1993 200206 Third Dividend 999.03 08/02/1994 200330 4th Dividend 2,568.94 18/03/1994 200385 5th Dividend 1,926.71 17/01/2000 300415 6th Dividend 4,281.57 Balance 0.00 14,271.90 14,271.90 DAL03 LFD Limited (formerly Dalgety Farmers Limited) 6,538,497.30 30/09/1992 200005 First Dividend 1,078,852.05 01/03/1993 200147 Second Dividend 980,774.60 25/08/1993 200207 Third Dividend 457,694.81 08/02/1994 200331 4th Dividend 1,176,929.51 18/03/1994 200386 5th Dividend 882,697.14 21/01/2000 300455 6th Dividend 1,961,549.19 Balance 0.00 6,538,497.30 6,538,497.30 DIR03 Direct Acceptance Corporation Ltd
R & M Appted646,948.30 30/09/1992 200006 First Dividend 107,104.05 01/03/1993 200148 Second Dividend 97,367.32 25/08/1993 200208 Third Dividend 45,438.08 08/02/1994 200332 4th Dividend 116,840.78 18/03/1994 200387 5th Dividend 87,630.59 21/01/2000 300452 6th Dividend 192,567.48 Balance 0.00 646,948.30 646,948.30 DIR04 Sir E Lee-Steere 70,000.00 30/09/1992 200007 First Dividend 11,550.00 25/08/1993 200243 Third Dividend 4,900.00 23/09/1993 200271 2nd Dividend 10,500.00 07/04/1994 200479 Fourth Dividend 12,600.00 07/04/1994 200479 Tax Instalment deductions 1,218.00 07/04/1994 200479 Fifth Dividend 9,450.00 07/04/1994 200479 Tax Instalment deductions 882.00 No sixth dividend paid following settlement agreement re legal claims -18,900.00 Balance 0.00 51,100.00 51,100.00 DIR05 Mr K Somes 30,000.00 30/09/1992 200008 First Dividend 4,950.00 01/03/1993 200150 Second Dividend 4,500.00 25/08/1993 200210 Third Dividend 2,100.00 Date Creditor Payments Total Paid Admitted 07/04/1994 200480 Fourth Dividend 5,400.00 07/04/1994 200480 Tax Instalment deductions 1,260.00 07/04/1994 200480 Fifth Dividend 4,050.00 07/04/1994 200480 Tax Instalment deductions 952.00 No sixth dividend paid following settlement agreement re legal claims -6,788.00 Balance 0.00 23,212.00 23,212.00 DIR06 Mr K Singleton 10,000.00 30/09/1992 200009 First Dividend 1,650.00 01/03/1993 200151 Second Dividend 1,500.00 25/08/1993 200211 Third Dividend 700.00 07/04/1994 200481 Fourth Dividend 1,800.00 07/04/1994 200481 Tax Instalment deductions 563.00 07/04/1994 200481 Fifth Dividend 1,350.00 07/04/1994 200481 Tax Instalment deductions 4,26.00 No sixth dividend paid following settlement agreement re legal claims -2,011.00 Balance 0.00 7,989.00 7,989.00 DIR07 Mr F Quilty 10,000.00 30/09/1992 200010 First Dividend 1,650.00 01/03/1993 200152 Second Dividend 1,500.00 25/08/1993 200212 Third Dividend 700.00 07/04/1994 200482 Fourth Dividend 1,800.00 07/04/1994 200482 Tax Instalment deductions 563.00 07/04/1994 200482 Fifth Dividend 1,350.00 07/04/1994 200482 Tax Instalment deductions 426.00 No sixth dividend paid following settlement agreement re legal claims -2,011.00 Balance 0.00 7,989.00 7,989.00 ESA02 Esanda Finance Corporation Ltd 268,650.00 30/09/1992 200011 First Dividend 44,327.25 01/03/1993 200153 Second Dividend 40,297.50 25/08/1993 200213 Third Dividend 18,805.50 08/02/1994 200337 4th Dividend 48,357.00 18/03/1994 200388 5th Dividend 36,267.75 17/01/2000 300416 6th Dividend 80,595.00 Balance 0.00 268,650.00 268,650.00 FOR02 Foster Hayle & Quill Pty Ltd 1,050.00 01/03/1993 200154 Second Dividend 157.50 25/08/1993 200214 Third Dividend 73.50 Date Creditor Payments Total Paid Admitted 25/08/1993 200214 Unclaimed Dividend -73.50 08/02/1994 200338 4th Dividend 189.00 18/03/1994 200389 5th Dividend 141.75 08/02/1994 200338 Unclaimed Dividend -189.00 18/03/1994 200389 Unclaimed Dividend -141.75 17/01/2000 300417 6th Dividend 315.00 17/01/2000 300417 Unclaimed Dividend -315.00 30/09/1992 111116 First Dividend 173.25 30/09/1992 111116 Unclaimed Dividend -173.25 01/03/1993 200154 Unclaimed Dividend -157.50 Paid to ASIC 1,050.00 Balance 0.00 1,050.00 1,050.00 FRE01 Freehill Hollingdale and Page 5,004.75 30/09/1992 200013 First Dividend 825.78 01/03/1993 200155 Second Dividend 750.71 25/08/1993 200215 Third Dividend 350.33 08/02/1994 200339 4th Dividend 900.86 18/03/1994 200390 5th Dividend 675.64 17/01/2000 300418 6th Dividend 1,501.43 Balance 0.00 5,004.75 5,004.75 GAR02 Mr B M Gardiner 376,781.62 30/09/1992 200015 Priority Claim 376,781.62 Balance 0.00 376,781.62 376,781.62 GEN02 Genoa Resources & Investment Ltd (In Liquidation) 5,646,194.24 06/08/1991 Settlement payment 75,000.00 30/09/1992 300016 First Dividend 856,012.27 01/03/1993 200156 Second Dividend 846,374.79 19/04/1993 300029 First Dividend 609.78 19/04/1993 300029 Second Dividend 554.35 25/08/1993 200217 Third Dividend 395,233.60 08/02/1994 200340 4th Dividend 1,016,314.96 18/03/1994 200391 5th Dividend 762,236.22 21/01/2000 300456 6th Dividend 1,693,858.27 Balance 0.00 5,646,194.24 5,646,194.24 GER01 Greyshield Enterprises Limited 1,545,766.99 30/09/1992 300017 First Dividend 255,051.55 01/03/1993 200157 Second Dividend 231,865.05 25/08/1993 200218 Third Dividend 108,203.69 08/02/1994 200341 4th Dividend 278,238.06 Date Creditor Payments Total Paid Admitted 18/03/1994 200392 5th Dividend 208,678.54 14/02/2000 300463 6th Dividend 251,568.08 Dividend received from DSL 102,571.20 Dividend received from DFL 108,469.81 Tax instalment deductions 1,121.01 Balance 0.00 1,545,766.99 1,545,766.99 HAR01 Messrs Anthony Harper 2,973.14 30/09/1992 200001 First Dividend 490.57 01/03/1993 200141 Second Dividend 445.97 25/08/1993 200201 Third Dividend 208.12 08/02/1994 200325 4th Dividend 535.17 18/03/1994 200381 5th Dividend 401.37 17/01/2000 300423 6th Dividend 891.94 Balance 0.00 2,973.14 2,973.14 IMP01 Imperial Printing Group 436.80 30/09/1992 300018 First Dividend 72.07 01/03/1993 200158 Second Dividend 65.52 25/08/1993 200219 Third Dividend 30.58 08/02/1994 200342 4th Dividend 78.62 18/03/1994 200393 5th Dividend 58.97 17/01/2000 300419 6th Dividend 131.04 Balance 0.00 436.80 436.80 JAR01 Jarden Europe Finance Limited 63,460.68 30/09/1992 300019 First Dividend 10,470.90 12/05/1993 300039 2nd Dividend 9,519.00 25/08/1993 200220 Third Dividend 4,442.25 08/02/1994 200343 4th Dividend 11,422.92 18/03/1994 200394 5th Dividend 8,567.19 01/02/2000 300458 6th Dividend 19,038.42 Balance 0.00 63,460.68 63,460.68 KAP01 Kaplan Smith & Associates Inc 253,658.05 30/09/1992 300020 First Dividend 41,853.58 01/03/1993 200160 Second Dividend 38,048.71 25/08/1993 200221 Third Dividend 17,756.06 09/02/1994 090294 4th Dividend 45,678.45 22/03/1994 220394 Fifth Dividend 34,243.84 22/02/2000 300472 6th Dividend 76,077.41 01/11/2000 300472 Reversal of Dividend -76,077.41 08/11/2000 081100 6th & Final Dividend 76,077.41 08/11/2000 081100 Cashbook Reversal -76,077.41 Date Creditor Payments Total Paid Admitted 22/02/2000 300472 6th Dividend 76,077.41 Balance 0.00 253,658.05 253,658.05 LAM01 Lambert Solomon Dorman 4,376.95 23/02/1993 200140 First Dividend 722.20 01/03/1993 200161 Second Dividend 656.54 08/02/1994 200345 4th Dividend 787.85 18/03/1994 200395 5th Dividend 590.89 30/06/1994 200517 Third Dividend 306.39 17/01/2000 300442 6th Dividend 1,313.08 20/09/2000 300442 Reversal of Dividend -1,313.08 21/09/2000 300547 replacement cheque 1,313.08 21/09/2000 300547 Cashbook Reversal -1,313.08 17/01/2000 300442 6th Dividend 1,313.08 Balance 0.00 4,376.95 4,376.95 LJH01 Colonial Mutual Life Assurance Society Ltd 261,060.65 30/09/1992 300021 First Dividend 43,075.01 01/03/1993 200162 Second Dividend 39,159.10 25/08/1993 200222 Third Dividend 18,274.25 08/02/1994 200346 4th Dividend 46,990.92 18/03/1994 200396 5th Dividend 35,243.19 21/01/2000 300453 6th Dividend 78,318.18 Balance 0.00 261,060.65 261,060.65 MEN01 Shire of Menzies 327.68 30/09/1992 300022 First Dividend 54.07 01/03/1993 200163 Second Dividend 49.15 25/08/1993 200223 Third Dividend 22.94 08/02/1994 200347 4th Dividend 58.98 18/03/1994 200397 5th Dividend 44.24 17/01/2000 300431 6th Dividend 98.30 Balance 0.00 327.68 327.68 NAB02 National Australia Bank Ltd 3,955,312.46 12/11/1992 200074 Priority claim 3,955,312.46 Balance 0.00 3,955,312.46 3,955,312.46 NAT01 National Share and Transfer Agency P/L 15,648.40 30/09/1992 300024 First Dividend 2,581.99 01/03/1993 200164 Second Dividend 2,347.26 Date Creditor Payments Total Paid Admitted 25/08/1993 200224 Third Dividend 1,095.39 08/02/1994 200348 4th Dividend 2,816.71 18/03/1994 200398 5th Dividend 2,112.53 17/01/2000 300425 6th Dividend 4,694.52 Balance 0.00 15,648.40 15,648.40 OAK01 Oakminster Ltd (In Liquidation) 1,883,547,32 Payment made verified by Price Waterhouse 128,234.25 Payment made verified by Price Waterhouse 132,330.59 30/09/1992 300025 First Dividend 310,785.31 01/03/1993 200166 Second Dividend 282,532.10 25/08/1993 200225 Third Dividend 131,848.31 08/02/1994 200349 4th Dividend 339,038.52 18/03/1994 200399 5th Dividend 254,278.89 24/07/2000 300518 Sixth Dividend 304,499.35 Balance 0.00 1,883,547.32 1,883,547.32 ORI01 Orix Australia Corporation Ltd 831.05 30/09/1992 300026 First Dividend 137.12 01/03/1993 200167 Second Dividend 124.66 25/08/1993 200226 Third Dividend 58.17 08/02/1994 200350 4th Dividend 149.59 18/03/1994 200400 5th Dividend 112.19 17/01/2000 300426 6th Dividend 249.32 Balance 0.00 831.05 831.05 PEA01 KPMG Peat Marwick 23,250.00 30/09/1992 300027 First Dividend 3,836.25 01/03/1993 200168 Second Dividend 3,487.50 25/08/1993 200227 Third Dividend 1,627.50 08/02/1994 200351 4th Dividend 4,185.00 18/03/1994 200401 5th Dividend 3,138.75 17/01/2000 300440 6th Dividend 6,975.00 Balance 0.00 23,250.00 23,250.00 PEA02 KPMG Peat Marwick 160.00 30/09/1992 300028 First Dividend 26.40 01/03/1993 200169 Second Dividend 24.00 25/08/1993 200228 Third Dividend 11.20 08/02/1994 200352 4th Dividend 28.80 18/03/1994 200452 5th Dividend 21.60 17/01/2000 300441 6th Dividend 48.00 Balance 0.00 160.00 160.00
Date Creditor Payments Total Paid Admitted POR01 Porter Western Limited 1,245.98 30/09/1992 300030 First Dividend 205.59 01/03/1993 200170 Second Dividend 186.90 25/08/1993 200229 Third Dividend 87.22 08/02/1994 200353 4th Dividend 224.28 18/03/1994 200453 5th Dividend 168.21 17/01/2000 300444 6th Dividend 373.78 Balance 0.00 1,245.98 1,245.98 RID01 Riddell Publishing 330.00 30/09/1992 300031 First Dividend 54.45 01/03/1993 200171 Second Dividend 49.50 25/08/1993 200230 Third Dividend 23.10 08/02/1994 200354 4th Dividend 59.40 18/03/1994 200458 5th Dividend 44.55 17/01/2000 300428 6th Dividend 99.00 Balance 0.00 330.00 330.00 RIV01 Rivian Investments Pty Ltd 600.90 30/09/1992 300032 First Dividend 99.15 01/03/1993 200172 Second Dividend 90.14 25/08/1993 200231Third Dividend 42.06 08/02/1994 200355 4th Dividend 108.16 18/03/1994 200455 5th Dividend 81.12 17/01/2000 300429 6th Dividend 180.27 Balance 0.00 600.90 600.90 RUS01 Rush International Pty Ltd 13,136.60 30/09/1992 300033 First Dividend 2,167.54 01/03/1993 200173 Second Dividend 1,970.49 25/08/1993 200232 Third Dividend 919.56 08/02/1994 200356 4th Dividend 2,364.59 18/03/1994 200457 5th Dividend 1,773.44 17/01/2000 300430 6th Dividend 3,940.98 Balance 0.00 13,136.60 13,136.60 SHI01 Shire of Yalgoo 830.68 30/09/1992 300034 First Dividend 137.06 01/03/1993 200174 Second Dividend 124.60 25/08/1993 200233 Third Dividend 58.15 08/02/1994 200357 4th Dividend 149.52 18/03/1994 200460 5th Dividend 112.14 17/01/2000 300445 6th Dividend 249.21 Date Creditor Payments Total Paid Admitted Balance 0.00 830.68 830.68 SIL01 Silver Freedman & Taff 20,829.77 30/09/1992 300035 First Dividend 3,455.74 01/03/1993 200175 Second Dividend 3,141.58 15/09/1993 015093 Third Dividend 1,422.14 18/04/1994 180494 Fourth Dividend 3,749.36 18/04/1994 180494 Fifth Dividend 2,812.02 22/02/2000 300470 6th Dividend 6,248.93 Balance 0.00 20,829.77 20829.77 STA00 Standard Chartered Bank (Hong Kong) 3,835,692.57 30/09/1992 300036 First Dividend 632,889.27 25/03/1993 025033 Second Dividend 575,353.89 25/08/1993 200235 Third Dividend 268,369.18 11/02/1994 110294 Fourth Dividend 690,384.21 22/03/1994 220394 Fifth Dividend 517,818.50 14/02/2000 300464 6th Dividend 1,150,561.67 Tax instalment deductions 45.34 Tax instalment deductions 100.76 Balance 169.75 3,835,522.82 3,835,692.57 STA01 Standard Chartered Bank Australia Ltd 3,606,592.63 30/09/1992 300037 First Dividend 595,087.78 01/03/1993 200177 Second Dividend 540,988.89 25/08/1993 200236 Third Dividend 252,461.48 08/02/1994 200359 4th Dividend 649,186.67 18/03/1994 200462 5th Dividend 486,890.01 17/01/2000 300451 6th Dividend 1,081,977.80 Balance 0.00 3,606,592.63 3,606,592.63 SWI01 Swire Travel 3,823.72 30/09/1992 300038 First Dividend 630.91 01/03/1993 200178 Second Dividend 573.56 25/08/1993 200237 Third Dividend 267.66 08/02/1994 200360 4th Dividend 688.27 18/03/1994 200463 5th Dividend 516.20 21/09/2000 300549 6th Dividend 1,147.12 Balance 0.00 3,823.72 3,823.72 TAL01 Talbot and Olivier 660.52 30/09/1992 300039 First Dividend 108.99 Date Creditor Payments Total Paid Admitted 01/03/1993 200179 Second Dividend 99.08 25/08/1993 200238 Third Dividend 46.24 08/02/1994 200361 4th Dividend 118.89 18/03/1994 200464 5th Dividend 89.17 17/01/2000 300446 6th Dividend 198.15 Balance 0.00 660.52 660.52 TAX01 Deputy Commissioner of Taxation 25,758.33 30/09/1992 200045 Priority Claim 25,758.33 Balance 0.00 25,758.33 25,758.33 TAX02 Deputy Commissioner of Taxation 210,001.55 30/09/1992 200040 First Dividend 34,650.26 01/03/1993 200180 Second Dividend 31,500.23 25/08/1993 200239 Third Dividend 14,700.11 08/02/1994 200362 4th Dividend 37,800.28 18/03/1994 200465 5th Dividend 28,350.21 17/01/2000 300450 6th Dividend 63,000.46 Balance 0.00 210,001.55 210,001.55 WES02 Western United Ltd (In Liquidation) 533,639.13 30/09/1992 300041 First Dividend 88,050.46 01/03/1993 200181 Second Dividend 80,045.87 25/08/1993 200240 Third Dividend 37,354.74 08/02/1994 200363 4th Dividend 96,055.04 18/03/1994 200466 5th Dividend 72,041.28 Admission of proof revoked prior to payment of 6th dividend and subsequently agreed not payable pursuant to settlement agreement re legal claim -160,091.74 Balance 0.00 373,547.39 373,547.39 WES03 Western United Management Serv. Pty Ltd (In Liquidation) 61,335.56 01/03/1993 200182 Second Dividend 9,200.33 25/08/1993 200241 Third Dividend 4,293.49 19/08/1993 200247 First Dividend 10,120.37 08/02/1994 200364 4th Dividend 11,040.40 18/03/1994 200467 5th Dividend 8,280.30 Admission of proof revoked prior to payment of 6th dividend and subsequently agreed not payable pursuant to settlement agreement re legal claim -18,400.67 Balance 0.00 42,934.89 42,934.89
Date Creditor Payments Total Paid Admitted WES04 Western United Mining Services P/L (In Liquidation) 3,528.59 30/09/1992 300043 First Dividend 582.21 01/03/1993 200183 Second Dividend 529.29 25/08/1993 200242 Third Dividend 247.00 08/02/1994 200365 4th Dividend 635.15 18/03/1994 200468 5th Dividend 476.36 22/02/2000 300469 6th Dividend 1,058.58 Balance 0.00 3,528.59 3,528.59 TOTAL BALANCE OUTSTANDING 169.75 TOTAL DIVIDENDS PAID/ADMITTED 29,841,650.22 29,841,819.97 Annexure 2
THE DUKE GROUP LIMITED (IN LIQUIDATION)
Post Liquidation interest Claims to 31 March 2000
Original Claim paid Lodged Proof for Admitted PLI Creditor 100c in $ PLI AUS$ 31-03-00 Rejected Amount DAC 646,948.30 11,666,026.66 1,783,826.12 9,882,200.54 Dalgety 6,538,497.30 19,586,215.02 14,326,366.92 5,259.848.10 DFC Taxation 235,759.88 240,502.12 240,502.12 0.00 Esanda 268,650.00 411,034.00 0.00 411,034.00 Gerah 1,545,766.99 2,240,845.35 2,251,683.93 0.00 GRAIL 5,646,194.24 17,071,594.10 12,633,463.65 4,438,130.45 Jarden 63,460.68 964,390.23 820,262.78 144,127.45 KPMG Peat Marwick 23,250.00 40,354.11 0.00 40,354.11 SCBA 3,606,592.63 1,284,624.59 0.00 1,284,624.59 WUL 373,547.39 2,443,730.73 0.00 2,443,730.73 18,948,667.41 55,949,316.91 32,056,105.52 23,904,049.97 SCBHK 3,835,522.82 6,181,622.65 5,335,622.38 846,000.27 22,784,190.23 62,130,939.56 37,391,727.90 24,750,050.24 Note 1: SCBHK has not been admitted by the liquidator, it is an estimate only and subject to ongoing discussions.
Note 2: Dividends paid to non-PLI claiming creditors:
7,057,459.99
11
1