Case: Fisher v Madden as Receiver and Manager of Dataflow Computer Services Pty Limited [2002] NSWCA 28 ; (2002) 54 NSWLR 179
Outcome: distinguished
In Fisher v Madden as Receiver and Manager of Dataflow Computer Services Pty Limited ('Fisher') [2002] NSWCA 28 ; (2002) 54 NSWLR 179 the New South Wales Court of Appeal was concerned to determine whether a payment ordered by the Industrial Relations Commission of New South Wales to be made under s 106 of the Industrial Relations Act 1996 (NSW) would be entitled to priority under s 556(1)(h) of the Corporations Law . In the course of his reasons for judgment Meagher JA adverted to s 553 of the Corporations Law at 183-5 [7] and [13]. In addressing whether any payment ordered to be made by the Commission might qualify as a contingent debt or claim within the meaning of s 553(1) of the Act his Honour said at [13]: '... The word "contingent" is a slippery word. ... In Federal Commissioner of Taxation v Gosstray [1986] VR 876 at 878, Tadgell J said: "An attempt to formulate a universally applicable definition of a contingent debt or of a contingent creditor is difficult ... . A contingent creditor, like an elephant, is rather easier to recognize than to define. The following statement by Pennycuick J in Re William Hockley Ltd ... is well known: 'The expression "contingent creditor" ... must, I think, denote a person towards whom under an existing obligation, the company may or will become subject to a present liability upon the happening of some future event or at some future date'. In Re Gasbourne Pty Ltd [1984] VR 801 at 837, Nicholson J said that he did not regard that description as exhaustive, and with respect I would not disagree. ... " It follows ... that ... one cannot accurately categorise Miss Fisher's rights (if any) as a "contingent" debt or claim. She has the bare right to make a claim, nobody knowing whether it will succeed or not, or if so in what amount, or subject to what terms or conditions. ...' 78 In his reasons for judgment Sheller JA, with whom Beazley JA agreed, said at 193 [44]: '... at the relevant date Dataflow was under no existing obligation to pay a sum of money by way of a retrenchment payment to Ms Fisher immediately or on a future event. Ms Fisher had only a right to take proceedings in the Industrial Relations Commission to vary the contract to that end. ... [46] However Ms Fisher's right under s 106 of the Industrial Relations Act be categorised, her right to invoke the jurisdiction of the Industrial Relations Commission did not until such time as an order was made create any obligation on Dataflow to make a retrenchment payment to her. Moreover, even if the Industrial Relations Commission declared the contract unfair, varied it ab initio and ordered Dataflow to make a retrenchment payment to Ms Fisher, it remains true that at the relevant date of Mr Madden's appointment no amount for retrenchment payment had become payable before, on or after the relevant date.' 79 The position in relation to a claim under the Industrial Relations Act 1996 (NSW) is on all fours with a claim for costs in respect of an application to wind up a company to which s 466 of the Act applies. 80 Following the process of reasoning indicated in Fisher , Gzell J held in Silbermann v One.Tel Limited (No 2) [2002] NSWSC 295 ; (2002) 20 ACLC 846 at 850-1 that an application to the New South Wales Industrial Relations Commission for the variation of a contract of service to include an indemnity against a director's liability in respect of corporate credit cards issued by American Express International Inc and Diners Club Pty Limited did not constitute future claims within the meaning of s 553 of the Act which were admissible to proof against the respondent, One.Tel Limited. 82 After referring to a passage from Sheller JA in Fisher , Gzell J continued at [16]: '... it seemed unlikely to his Honour that the legislative intention was no longer to confine an obligation to one in existence at the relevant date but to extend the category of future claim to any obligation which comes into existence at any time in the future. In my view, such a construction of s 553(1) would place an intolerable burden on a liquidator whose responsibility it is to determine which future claims are to be admitted to proof and in what amounts.'