Australia: Trust companies in liquidation - dealing with priority debts

Last Updated: 27 July 2016
Article by Mikhail Glavac

The decision in In the matter of Independent Contractor Services (Aust) could mean more reliance upon fair entitlements guarantee funding provided by the Commonwealth in relation to the liquidation of trading trusts.

A recent decision of the NSW Supreme Court has some interesting implications for liquidators of trustee companies dealing with any recovered trust funds and priority debts. At the same time, the Court reconsidered the manner in which it will approach a liquidator's remuneration (In the matter of Independent Contractor Services (Aust) Pty Limited ACN 119 186 971 (in liquidation) (No 2) [2016] NSWSC 106).

A trustee company goes into liquidation

Independent Contractor Services (ICS) was a staffing agency which supplied persons whom it had retained (contractors) to deliver services on behalf of information technology and engineering consultancies. The business used a structure whereby ICS was trustee of a discretionary trust called the Independent Contractor Services Trust (ICS Trust). The primary beneficiary and appointor of the ICS Trust was a related entity of ICS.

The contractors applied to become general beneficiaries of the ICS Trust, and acknowledged that they were not employees, and had no right or entitlement to any income or capital of the ICS Trust. Receipts from clients and payments to Contractors were processed through the ICS Trust bank account. The only function of ICS was to act as trustee of the ICS Trust. In an earlier judgment, Justice Brereton had considered whether the trust arrangement was a sham, but concluded that it was not (In the Matter of ICS Real Estate Pty Ltd (in liquidation); and In the Matter of Independent Contractor Services (Aust) Pty Ltd (in liquidation) [2014] NSWSC 479).

After completing an audit of ICS's PAYG withholding, the Commissioner of Taxation determined that ICS had a superannuation guarantee charge liability for failure to withhold amounts paid to the contractors of over $2.2m. A superannuation guarantee charge is a priority debt under section 556(1)(e) of the Corporations Act 2001 (Cth). Together with administrative penalties, the ATO lodged a proof of debt in the liquidation of ICS for just under $11.6m. The contractors claimed they were owed $232,368.84 as beneficiaries of the ICS Trust. There were also unsecured trade creditors of ICS who lodged proofs of debt in its liquidation.

In the administration and liquidation of ICS, the liquidator recovered funds totalling around $200,000. After the costs of the external administration of the company, there was $130,980 available for distribution, before allowing for liquidator's remuneration. The liquidator applied to the Court for approval of his remuneration, and directions in relation to how he should distribute the remaining funds.

Trust funds and the superannuation guarantee charge liability

Justice Brereton held that the recoveries made by the liquidator were ICS Trust funds, which were not beneficially owned by ICS. The debts owed to the ATO were liabilities incurred by ICS in its trustee capacity, and that ICS was therefore entitled to be indemnified for those liabilities from the ICS Trust assets pursuant to the trustee's lien.

Did this mean the superannuation guarantee charge liability was entitled to section 556 priority, as a liability payable out of trust assets pursuant to the trustee's lien? Justice Brereton held that it was not, for two independent reasons.

First, on the facts of the case the contractors in respect of whom the superannuation guarantee charge liability arose were not "employees" as defined in section 556. This precluded section 556 priority:

"although the expanded definition applies under [section 12 of the Superannuation Guarantee (Administration) Act 1992 (Cth)] to make superannuation guarantee charge payable notwithstanding that the contractors are not strictly employees, the ensuing liability is not one in respect of an "employee" for the purposes of s 556, and is thus not entitled to priority under s 556(1)(e)(i)."

Second, Justice Brereton found that section 556 was "concerned only with the distribution of assets beneficially owned by a company and available for division between its general creditors". It therefore does not apply to trust funds, including trust funds the subject of the trustee's lien. Noting that Re Suco Gold Pty Ltd (1993) 33 SASR 99, which had held that liabilities were to be paid from the trust property in the order laid down in section 556, was "virtually universally accepted to be incorrect", Justice Brereton held that the correct position was that:

"the company, as trustee, had, and its Liquidator now has, a right of indemnity from, and lien over, the trust assets, which has priority over the interest of the beneficiaries, for liabilities it incurred in acting as trustee. As all the company's liabilities were incurred in its trustee capacity, all its creditors (including in particular the ATO in respect of superannuation guarantee charge and PAYGW penalty) are entitled to be subrogated to the Liquidator's lien. The statutory priority referred to in s 556 does not apply in respect of trust assets, and the creditors share pari passu in the trust assets, after providing for the costs of administration including the Liquidator's remuneration and expenses."

Liquidator's remuneration - the ad valorem approach

Another aspect of the decision was Justice Brereton's consideration of the liquidator's application that the Court approve his remuneration in the amount of $49,510. Justice Brereton only allowed remuneration of $30,000, and expressly criticised the practice of seeking remuneration based solely on time reasonably spent at standard hourly rates. Instead, he approved and applied an ad valorem approach to assessing a liquidator's remuneration:

"ad valorem remuneration, while not without shortcomings, is inherently proportionate, incentivises the creation of value rather than the disproportionate expenditure of time, was — until the relative recent proliferation of time-based costing — conventional, and is still contemplated by the relevant statutory provisions."

Justice Brereton arrived at the $30,000 figure having regard to the size of the funds in the company, the totality of work undertaken and time expended by the liquidator and his staff, the challenges presented, and the extent to which others (including lawyers and debt collectors) were engaged and remunerated for associated work.

Implications for liquidators of trustee companies and section 556 priority

Justice Brereton's decision has significant implications for the treatment of priority debts in the liquidation of a trustee company, which, given their prevalence in the market, is a frequent issue for liquidators, and may prove especially vexing for the employees of trading trusts.

For example, the contractor / employee distinction is a technical one based on the facts. If the contractors had been employees, they would have had section 556 priority for any unpaid wages and leave entitlements. In respect of trust funds claimed by the company, such debts would only rank pari passu with other unsecured creditors pursuant to the trustee's lien. This has the potential to result in a significantly worse recovery in liquidation for employees of trustee companies, notwithstanding that there is no clear policy justification for treating employees differently based upon the business structure adopted by the employer. The practical result may be more reliance upon fair entitlements guarantee funding provided by the Commonwealth in relation to the liquidation of trading trusts.

Furthermore, it must be noted that the decision in Independent Contractor Services (No 2) is inconsistent with other authority, notably Suco (which was the decision of the Full Court of the Supreme Court of South Australia). It would be premature to say that the position adopted by Justice Brereton is the settled law. A prudent liquidator may, therefore, feel compelled to seek directions before distributing trust fund assets, which is likely to inflate the costs of appointments to insolvent trading trusts, at least until there is superior court authority which settles the point.

In addition, Justice Brereton's findings with respect to what was fair and reasonable remuneration for the liquidator are likely to spark controversy. He was at pains to note that the Court ought not "discourage liquidators from undertaking small but difficult liquidations" in respect of its approach to the question of remuneration. However, he separately noted that "in smaller liquidations" questions of "proportionality, value and risk loom large" and "liquidators cannot expect to be rewarded for their time at the same hourly rate as might be justifiable where more property is available". These observations can be expected to be at the forefront in the minds of insolvency practitioners when they are deciding whether to accept an appointment to a small company, given that they act under the same obligations regardless of the size of the company to which they are appointed.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.