Australia: Court confirms liquidator has first pick over secured creditor of the fruits of litigation

Last Updated: 22 August 2014
Article by Mark Harley

Summary: The High Court considered the competing entitlements of a liquidator and a secured creditor to the proceeds of a claim brought by a liquidator. Partner Mark Harley reports on the High Court's decision.

How does it affect you?

  • The High Court considered whether, when a company in liquidation brings a claim, the liquidator or the company's secured creditor will have priority to the fund realised by the pursuit of litigation
  • It is well established as a matter of law that where a fund is realised by a liquidator's efforts in pursuing litigation, equity will create a charge over the fund in favour of the liquidator for their reasonable expenses, enabling those expenses to be paid in priority to any return to the secured creditor
  • In Stewart v Atco Controls Pty Ltd (in Liquidation) [2014] HCA 15, the High Court confirmed that an equitable charge will be created even if the claim is brought by the liquidator against the secured creditor and the secured creditor did not stand to benefit from the litigation
  • Liquidators of a company that has granted a charge over all of its assets can take comfort that their costs and expenses in pursuing litigation which is brought with propriety, and in the course of their statutory duties,


  • Atco Controls Pty Ltd (the "secured creditor") held a fixed and floating charge over the assets of its subsidiary, Newtronics Pty Ltd (the "company").
  • The secured creditor gave letters of support to the company, promising to provide the company with funds to meet its trading obligations and provided assurance that it would not call upon the debt owed to it within a relevant period.
  • The secured creditor appointed receivers to the company after the company was ordered to pay damages of $8.9 million to an unsecured creditor, Seeley International Pty Ltd, in a separate proceeding.
  • The receivers sold the company's business and Seeley International Pty Ltd applied to have the company wound up and a liquidator was appointed.
  • The company had no assets which could be realised. Therefore, in order to pay the liquidator's costs, the liquidator sought funding from its creditors. Seeley International Pty Ltd ("the funding creditor") agreed to indemnify the liquidator for his costs and expenses in pursuing an action against the secured creditor on the basis of the letters of support.

Initial action against the secured creditor and the receivers

The company alleged that by reason of the promises made in the letters of support, the secured creditor was not entitled to enforce its security and that the receivers were wrongfully appointed. The claim against the secured creditor was unsuccessful, but the receivers settled the liquidator's claim against them for $1.25 million.

The secured creditor demanded payment of the settlement sum pursuant to its charge. The liquidator declined to pay the settlement sum to the secured creditor on the basis that it had an equitable lien over that sum that secured its realisation costs (which were in excess of the settlement sum). In response, the secured creditor brought proceedings challenging the liquidator's decision.

The Supreme Court and appeal

The Supreme Court of Victoria found in favour of the liquidator. The secured creditor then appealed this decision and was successful in the Court of Appeal. The liquidator was subsequently granted special leave to appeal to the High Court.

The High Court decision

The High Court unanimously upheld the liquidator's appeal.

The decision turned on the application of the principle in In re Universal Distributing Co Ltd (In Liq) (1933) 48 CLR 171 at 174 which provides that a secured creditor may not have the benefit of a fund created by a liquidator's efforts in the winding up, without the liquidator's costs and expenses first being met. Put simply, equity will create an equitable charge over the fund which ranks ahead of the secured creditor's charge (the Universal Distributing principle).

Although the Universal Distributing principle is well established, the secured creditor contended that it should not be applied in circumstances where it argued that the proceeding was, in substance, between the funding creditor (which had indemnified the liquidator) and Atco; the secured creditor had not willingly allowed the litigation to be run; and it did not stand to benefit from the claim (which was against it and its receivers). The High Court rejected each of the secured creditor's arguments, observing as follows:

  • The fact that the secured creditor had not willingly participated in the realisation of the settlement sum did not preclude the creation of an equitable charge.
  • There is no requirement that the liquidator's work had to be done for the exclusive purpose of raising the fund for an equitable charge to be created. The liquidator's subjective purpose (which the secured creditor contended was to remove its status as a creditor) was irrelevant.
  • The liquidator has not acted unconscientiously by acting in the funding creditor's interests. The liquidator's duty is owed to the body of creditors as a whole and to the court. The liquidator had acted with propriety and in the course of his statutory duties in bringing the proceeding.

The High Court held that there were no particular facts or circumstances in the Atco matter that rendered the Universal Distributing principle inapplicable. The result of the decision is that the fund produced by the litigation should bear the cost of its realisation, with the settlement sum being applied to meet the costs incurred in running the proceeding.


While a secured creditor's fixed charge will ordinarily have priority over all other claims, there are some circumstances in which the costs incurred by an insolvency practitioner will be required to be paid ahead of the secured creditor. Under the 'salvage principle', the administrators' or liquidators' expenses reasonably incurred in the care, preservation and realisation of the secured property are required to be paid ahead of any return to the secured creditor.

The High Court's decision in Atco demonstrates that where a liquidator causes a company to pursue a cause of action that is subject to the secured creditor's charge, and the liquidator acts with propriety and in the interests of the general body of creditors, the liquidator will have an equitable charge or lien over the proceeds of that claim. That charge or lien will secure the costs and expenses incurred by the liquidator in pursuing the claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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