In the matter of Spitfire Corporation Limited (in liquidation) and Aspirio Pty Ltd (in liquidation) [2022] NSWSC 579

In the matter of Spitfire Corporation Limited (in liquidation) and Aspirio Pty Ltd (in liquidation) [2022] NSWSC 579

Given that Resilient’s opposition was adversarial and caused additional costs, it is just that Resilient pays the plaintiffs’ additional costs incurred by its opposition beyond those of an uncontested application; but there is no basis at this stage for ordering those costs be paid out of the R&D Refunds, nor for ordering Resilient to pay the Commonwealth’s costs.

Parties
First Plaintiffs: Katherine Elizabeth Barnet and Damien Mark Hodgkinson (as joint and several liquidators of Spitfire Corporation Ltd (in liq) and Aspirio Pty Ltd (in liq)); Second Plaintiff: Spitfire Corporation Ltd (in liq); Third Plaintiff: Aspirio Pty Ltd (in liq); Interested Party: Resilient Investment Group Pty Ltd; Interested Party: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
12 May 2022
Procedural Posture
Application for Directions in Liquidation (equity Corporations List) / Post Judgment; Costs and Directions Orders
Outcome
Directions made in favour of liquidators confirming characterisation of R&D Refunds and employer; Resilient ordered to pay plaintiffs’ additional costs. No order as to costs between Resilient and Commonwealth. Liberty to apply on limited issues reserved.
Legal Topics
Liquidator Directions, Priority of Debts, Research and Development Tax Refunds, Costs Against Non Parties, Circulating Assets
Insolvency Corporations Costs Liquidator Directions Priority of Debts Research and Development Tax Refunds Costs Against Non Parties Circulating Assets

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 18 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Katherine Elizabeth Barnet and Damien Mark Hodgkinson (as joint and several liquidators of Spitfire Corporation Ltd (in liq) and Aspirio Pty Ltd (in liq))

First Plaintiffs

Spitfire Corporation Ltd (in liq)

Second Plaintiff

Aspirio Pty Ltd (in liq)

Third Plaintiff

Resilient Investment Group Pty Ltd

Interested Party

Commonwealth of Australia

Interested Party

Procedural Posture

Application for Directions in Liquidation (equity Corporations List) / Post Judgment; Costs and Directions Orders

Legal Issues

  1. 1 Whether R&D tax refunds received by Spitfire Corporation were circulating assets for the purposes of s 561 of the Corporations Act
  2. 2 Whether liquidators' and Commonwealth’s costs should be paid by Resilient as an intervening non-party
  3. 3 Whether Plaintiffs’ costs should be paid out of the R&D Refunds

Ratio Decidendi

Given that Resilient’s opposition was adversarial and caused additional costs, it is just that Resilient pays the plaintiffs’ additional costs incurred by its opposition beyond those of an uncontested application; but there is no basis at this stage for ordering those costs be paid out of the R&D Refunds, nor for ordering Resilient to pay the Commonwealth’s costs.

Court Disposition

Directions made in favour of liquidators confirming characterisation of R&D Refunds and employer; Resilient ordered to pay plaintiffs’ additional costs. No order as to costs between Resilient and Commonwealth. Liberty to apply on limited issues reserved.

Orders

  • The First Plaintiffs are justified in treating R&D Refunds as property subject to a circulating security interest and to pay priority debts under s 561 of the Act.
  • Spitfire Corporation is to be treated as the employer of the group’s employees (other than one exception) for priority creditor purposes.