Metal Manufactures Pty Limited v Morton

Metal Manufactures Pty Limited v Morton - [2023] HCA 1 - HCA 2022 case summary — Zoe

[11]

The survey commences with Div 2 of Pt 5.4B of Ch 5 of the Act[3]. Chapter 5 addresses the various forms of external administration of a company, and Div 2 of Pt 5.4B deals with an instance of such administration, namely the appointment of a liquidator by a Court following the making of an order for the winding up of a company[4]. Pursuant to s 474 of the Act, relevantly the liquidator must take into his or her custody, or under his or her control, all of the property which is, or appears to be, the property of the company being wound up. Unlike the case of a person who becomes a bankrupt, where the property of the bankrupt vests in the Official Trustee[5], the property of the company does not vest in the liquidator[6]. Thereafter, pursuant to s 477 of the Act, the liquidator is empowered, amongst other things: to carry on the business of the company[7]; to pay any class of creditors subject to s 556 of the Act (as to which see below)[8]; to make any compromise or arrangement with the creditors of the company[9]; to compromise any calls, liabilities and debts subsisting between the company and a contributory or other debtor[10]; to bring or defend proceedings in the name and on behalf of the company[11]; to sell all or any part of the property of the company[12]; to do all acts and execute in the name and on behalf of the company all deeds, receipts and other documents[13]; and otherwise to do all things as are necessary for winding up the affairs of the company and distributing its property[14]. Generally, in exercising these powers, the liquidator must use his or her own discretion in the management of the affairs and property of the company and the distribution of its property[15].
As soon as practicable after the company is ordered to be wound up, a liquidator must cause the property of the company to be collected and applied in discharging the company's liabilities[16]. The company, whilst being wound up, does not hold its property on trust for creditors and members. The statutory regime for the administration of a company in liquidation is both an exhaustive and sufficient measure for the distribution of the company's property which does not necessitate or justify the intervention of equity. As Menzies J observed in Franklin's Selfserve Pty Ltd v Federal Commissioner of Taxation[17]:

[16]

Section 553 creates an important cut-off date to determine what debts and claims are provable in the winding up. As Allsop CJ observed below, a critical feature of this provision is that it addresses only debts and claims against the company arising from "circumstances" which had occurred "before the relevant date"[22]. Here, the "relevant date" is the date when the winding up of a company is taken because of Div 1A of Pt 5.6 of the Act to have begun[23]. The breadth of the language of s 553 is noteworthy[24]. It extends to all debts payable by and all claims against the company, whether "present or future, certain or contingent, ascertained or sounding only in damages", which arise from "circumstances" before the commencement of the winding up. In contrast, s 82 of the Bankruptcy Act 1966 (Cth), which addresses debts provable in bankruptcy, is limited to debts to which the bankrupt was subject as at the date of bankruptcy, or to which he or she may become subject "by reason of an obligation incurred before the date of the bankruptcy".
The purpose of s 553 is important. As Campbell JA observed in BE Aust WD Pty Ltd v Sutton[25], s 553 ensures that all legal obligations to which a company is subject are ascertained and then valued "at a common date", so that they can be taken into account in the winding up. Critically, and subject to one possible exception[26], no debt or claim arising from circumstances arising after the commencement of the winding up of the company is admissible to proof against the company in the liquidation.
Section 555 of the Act provides for the distribution of the assets of the company in accordance with the pari passu principle. It provides that, except as otherwise provided, all debts and claims proved in a winding up rank equally, and that if the property of the company is insufficient to meet such debts and claims, they must be paid proportionately. Many of the exceptions to this principle are set out in s 556 of the Act, which lists a series of payments to be made in priority to all unsecured debts and claims. These include: certain of the liquidator's expenses[27]; the costs of the application for the winding up order[28]; certain amounts owing to employees of the company before the date of winding up[29]; and certain retrenchment payments payable to employees of the company[30].

[36]

The liquidator's right to seek recovery pursuant to s 588FF of an unfair preference is part of the statutory scheme of liquidation concerned with maximising the distributable pool of assets. It is thus "in the nature of a corollary" to that scheme, including the provisions which prescribe the order of priorities to be observed by the liquidator in the application of the company's property[37]. It is directed at ensuring that the administration of the company is not distorted by putting a debt "ahead of the place appropriate to it in the prescribed order"[38]. In this way, the provision achieves its primary objective of "securing equality of distribution amongst creditors of the same class"[39].
The nature of the liability created by an order for the payment of money under s 588FF(1)(a) of the Act was disputed in this appeal. The appellant emphasised that the liability was one owed to the company, and that when discharged, the payment was received beneficially by the company in accordance with the principle established by Linter Textiles. As such, it was available to be applied in making priority payments and in making payments to creditors and contributories. It was not destined, as a legal necessity, to be distributed to creditors. Reference was made to s 482 of the Act[40], which, it was said, indicates that in the event of the termination of a liquidation under that section, a payment made pursuant to an order under s 588FF(1)(a) could conceivably be available to be deployed for the purposes of the company's ongoing business.
In contrast, the respondents emphasised that the cause of action created by s 588FF was one conferred upon the liquidator and not the company. Contrary to the contention of the appellant, they submitted that the cause of action conferred by s 588FF was not one exercisable by the liquidator as agent of the company[41], but rather as an officer of the court. That submission should be accepted. When deciding to institute proceedings pursuant to s 588FF, the liquidator acts as an officer of the court charged with the duties and responsibilities created by the statutory scheme of liquidation. It follows that whilst the liquidator might in other situations be characterised as an agent of the company, for the purposes of s 588FF no reason exists to characterise the liquidator as acting in such a capacity. But amounts recovered by action under s 588FF are then to be dealt with according to the statutory scheme of liquidation.
The foregoing is consistent with history. Originally preferences were "void as against the assignee or trustee of the insolvent"[42], rather than the company. But "void" in this sense meant only that preferences were voidable at the instance or election of the trustee or the liquidator[43].
Section 588FE defines what is a "voidable transaction". It only applies where a company "is being wound up". Relevantly here, s 588FE(2) provides that a transaction is voidable if it is an "insolvent transaction" of the company and it was entered into during the six months ending on the "relation-back day", which here was the day the winding up of MJ Woodman commenced[44]. It was an agreed fact in the Amended Special Case that the relation-back period for the purposes of s 588FE(2) ran from 13 August 2018 to 12 February 2019.
Section 588FC defines what is an "insolvent transaction". Relevantly, a transaction is an "insolvent transaction" if it is an "unfair preference" given by the company and, at a time when the transaction was entered into, or when an act was done, or omission was made, for the purpose of giving effect to the transaction, the company was insolvent. The Amended Special Case does not state when MJ Woodman became insolvent. However, for the purposes of assessing whether set-off is available, this Court was asked to assume that this provision was satisfied in relation to each of the two payments in the sum of $50,000 and $140,000.
Section 588FA defines what is an "unfair preference". A transaction will relevantly be an unfair preference if: the company and the creditor are parties to it; and it results in the creditor receiving from the company more than the creditor would receive in respect of an unsecured debt if the transaction were set aside and the creditor "were to prove for the debt in a winding up of the company"[45]. Two observations should be made. The Amended Special Case does not concede that any payments made to the appellant are unfair preferences. Rather, this again has been assumed for the purposes of answering the question reserved for consideration by the Full Court. Secondly, s 588FA is directed at what might have been provable in the winding up. Of necessity, for the reasons already given, that means that it is concerned with a transaction that is an unfair preference entered into before the commencement of the winding up.
Section 588FI applies where a creditor receives an unfair preference from a company and at the request of the company's liquidator, because of an order under s 588FF, or for any other reason, the creditor has put the company in the same position as if the transaction had not been entered into. Where s 588FI is engaged, the "creditor may prove in the winding up as if the transaction had not been entered into"[46]. This section reflects the well-established position under the former companies legislation that a creditor who receives an unfair preference cannot prove in the winding up of a company until it has repaid the amount preferentially paid to it in full[47]. It is also an exception to the principle enshrined in s 553 that only debts and claims which existed before the commencement of the winding up are provable.

[38]

The appellant submitted that it was entitled to set off its potential liability said to arise under s 588FF(1)(a) against amounts owing to it by MJ Woodman because there had been a mutual dealing between it and that company. That mutual dealing was said to include the trading transactions which had taken place during the relation-back period for which the appellant had been paid by MJ Woodman - the alleged unfair preferences. The liability under s 588FF(1)(a) will arise because of those voidable transactions; when this liability crystallises, it was said, an account will therefore need to be taken of it as against the remaining amount owed to the appellant for the purposes of s 553C(1). The appellant, in that respect, emphasised that its future liability under s 588FF(1)(a) was no different to any other claim owed to the company precisely because, for the reasons given in Linter Textiles, when it is paid, the company will receive it beneficially.
It was said that it did not matter that, as at the date of the commencement of the winding up, that liability had not yet sprung into existence. It was sufficient, the appellant submitted, that it existed as a contingent liability which might in the future mature into an actual present liability. Relevantly, the essential contingencies were said to be the bringing of an action by the liquidator under s 588FF(1) and the court's satisfaction that there had been a voidable transaction for the purposes of s 588FE of the Act which justified an order obliging the appellant to pay MJ Woodman. All of the facts necessary to make good those contingencies, including satisfaction of ss 588FE, 588FC and 588FA, existed as at the date the company was wound up.
The appellant relevantly relied upon three authorities of this Court in support of the foregoing submissions. The first was Gye[48], which, as mentioned above, concerned the equivalent right of set-off conferred by s 86 of the Bankruptcy Act. That provision, like s 553C(1), required the existence of "mutual credits, mutual debts or other mutual dealings" between a bankrupt and a creditor. This Court emphasised that in order to do "substantial justice" it was necessary to give s 86 the "widest possible scope"[49]. Consistently with this, the term "mutual dealings" was introduced into the Bankruptcy Act to avoid merely technical outcomes. This Court said[50]:

[40]

The word "dealings" thus extended to "matters having a commercial or business flavour"[51]. Its meaning extended to "the communings, the negotiations, verbal and by correspondence, and other relations which occur or exist in" any commercial or business setting[52]. No reason existed, the appellant said, for the adoption of a different approach when applying s 553C(1).
The appellant submitted that it was important that, in Gye, this Court also recognised that it was sufficient if the mutual dealing was one which was "capable of giving rise to" claims in the future which might be eligible to be set off[53]. The word "mutual", in that respect, conveyed the notion of "reciprocity rather than that of correspondence"[54].
Here, it was submitted by the appellant that each of the three aspects required by Gye, referred to above[55], was satisfied. First, the transactions which had taken place during the relation-back period were between the same parties. Secondly, the benefit or burden of the dealings lay in the same interests because the company and the creditor are owed monies which, when paid, will be received beneficially. This aspect of the requirement of mutuality was limited, it was contended, to asking whether the parties would receive the benefit of any payment beneficially or in the capacity of a trustee. This aspect of the requirement of mutuality will need to be revisited. Thirdly, the liability of MJ Woodman and that which will arise under s 588FF(1)(a) both sound in money.
The second case relied upon by the appellant was Hiley v Peoples Prudential Assurance Co Ltd[56]. The majority decided that the appellant (Mr Hiley) was entitled - pursuant to s 82 of the Bankruptcy Act 1924 (Cth), as applied to companies at that time by s 264 of the Companies Act 1899 (NSW) - to set off an amount, payable by way of damages to him by the respondent company in liquidation, against amounts previously owing by him to the company which had been secured by a mortgage.
For the purposes of deciding whether there have been mutual debts, mutual credits or mutual dealings, Dixon J said that "the decisive date is that of the commencement of the winding up"[57]. This proposition was critical to the appellant's case that one is not confined to looking at claims arising before the start of a winding up. His Honour explained why the commencement date was decisive in the following terms[58]:

[49]

The appellant's case turned upon the presence as at the date of the commencement of the winding up of an inchoate or contingent right to sue under s 588FF(1) which was capable of growing or maturing into a money claim that could then be set off against the amount owed by MJ Woodman to it. That proposition suffers from a fatal flaw. Construed in the context of the statutory scheme of liquidation, s 553C(1) requires that the mutual credits, mutual debts or other mutual dealings be credits, debts or dealings arising from circumstances that subsisted in some way or form before the commencement of the winding up. That is because under that statutory scheme, s 553C exists in aid of s 553, which is concerned with debts and claims, whether "present or future, certain or contingent, ascertained or sounding only in damages", arising from "circumstances" that had occurred before the commencement of the winding up. That is why s 553C(1) refers to a "person who wants to have a debt or claim admitted against the company" and then provides that only the balance of any set-off is "admissible to proof against the company, or is payable to the company, as the case may be". As such, the function and purpose of s 553C is to permit a reckoning of amounts owing to and by the company during the relation-back period prior to the appointment of the liquidator.
Here, immediately before the commencement of the winding up there was nothing to set off as between the appellant and MJ Woodman; the company owed money to the appellant, but the appellant owed nothing to the company. Moreover, the inchoate or contingent capacity held by the liquidator to sue under s 588FF could not and did not exist before then[67]. It could only be made following the commencement of the winding up. It was wholly "new" in the sense described by Dixon J in Hiley. It sprang into existence as a specific statutory right held by the liquidator for the purposes of recovering preference payments to secure the equitable distribution of assets amongst creditors. As such, it was not eligible to be set off against the pre-existing amount owed to the appellant.
It follows that the appellant could not identify a relevant mutual dealing. Contrary to its contentions, neither the trade transactions which were undischarged by MJ Woodman during the relation-back period nor, for the reasons already expressed, the discharged trade transactions (giving rise to the liabilities of $50,000 and $140,000), together with the liability which may arise under s 588FF(1)(a), were mutual dealings. Section 553C(1), correctly construed, does not address dealings which straddle the period before and after the commencement of the winding up.
Contrary to the appellant's submissions, Hiley does not otherwise assist it. What existed before the winding up in that case was the cause of action for the re-transfer of the mortgage over Mr Hiley's land and Mr Hiley's rights under his contract of life assurance, the latter of which, when repudiated upon the making of the winding up order, gave rise to a provable claim for unliquidated damages[68]. In contrast, here the liquidator's right to sue for an order under s 588FF(1), arising from the commencement of the winding up, was not, and never could be, "payable to the company" for the purposes of s 553C(1) and s 553 more generally, for the reasons set out above.
Moreover, as at the date of the commencement of the winding up, the liquidator did not hold any vested or contingent "right" and the appellant owed no "obligation", in the sense in which those words were used in Hiley (as set out in the passage above[69]), which together might have constituted a mutual dealing of some kind. In order that a liability be characterised as contingent, there must be, at the time of winding up, an existing obligation out of which, on the happening of a future event, an obligation to pay a sum of money will arise[70]. At most, the liquidator held an expectancy, unsupported by any underlying right or obligation which pre-existed the liquidation, which might at some point grow into a money claim of some kind[71]. In that respect, this case is unlike that of Day & Dent where, as at the commencement of the winding up, vested rights existed under a guarantee given previously. By reason of the guarantee, the surety, to use the language of Mason J, had "undertaken an obligation" which on payment to the principal creditor would result in a debt owing to the surety by the principal debtor. The ability to sue for an order under s 588FF conferred no equivalent "right" or "obligation"; rather, conditioned as it was on both the liquidator's decision to sue and the court's satisfaction that the elements of s 588FE(2) had been satisfied, it rose no higher, as at the commencement of the winding up, than a mere possibility without more[72]. That is not sufficient[73].
It follows that under the statutory scheme of liquidation, any liability arising from the making of an order by a court under s 588FF(1)(a) cannot form part of the process for the identification of provable debts and claims for the purposes of s 553, and thus cannot be the subject of a valid set-off against pre-existing amounts owed by the company to the preferred creditor for the purposes of s 553C.
The foregoing is consistent with the function and purpose of the regime for dealing with voidable transactions in Div 2 of Pt 5.7B of the Act and the regime for the proof and ranking of claims in Div 6 of Pt 5.6 of the Act. The former is directed at the liquidator's duty and capacity to recover preferential payments and at the need to ensure equality in the making of distributions to the same class of creditors. In contrast, the latter is directed at the identification of which debts and claims must be addressed by the liquidator. It would be a gross distortion of the statutory scheme of liquidation if a creditor could, in effect, avoid the consequences of having received a preferential payment by the happenstance that it was also owed money by the company in liquidation. Such an outcome would diminish the pool of assets available for priority payments and rateable distribution. It would permit a preferred creditor to use each dollar owed to it by the company to set off in full each dollar of liability arising from receipt of an unfair preference.
In any event, any such liability could not constitute a mutual credit, mutual debt or mutual dealing with the pre-existing amount owed by the company for two further reasons. First, there had been no dealing between the same persons[74]. The alleged unfair preferences were paid during the relation-back period by MJ Woodman to the appellant. The liability created by s 588FF(1)(a), whilst owed to the company (which will receive it beneficially), is nonetheless one that arises upon the application of the liquidator, who, for the reasons given above, does not do so as an agent of the company but rather in his or her own right as an officer of the court[75].
Secondly, there is no mutuality of interest[76]. Contrary to the contentions of the appellant, that consideration is not confined to determining whether both parties are beneficially or legally entitled to what they are owed. As the Court of Appeal of the Supreme Court of Western Australia recently observed, a consideration of the benefit of equitable interests in a transaction is but an example of when two parties can enjoy mutuality of interest[77].
Here, on no view can it be said that the entire amount which the liquidator will recover under s 588FF(1)(a) will be "for his own benefit" or indeed for the benefit of MJ Woodman. That is because, for the reasons expressed above, that amount must be applied under the statutory scheme of liquidation and be made available, amongst other things, for the making of priority payments and for distribution to creditors in accordance with the pari passu principle. Given the obligations and duties imposed by the statutory scheme, it cannot be said that the interest the appellant has in being paid by MJ Woodman is the same as the interest of both the liquidator and the company in recovering the preferential payment. The liquidator's right of recovery is not comparable to a trading transaction whereby goods or services have been previously supplied to a company; it is a unique statutory ability to recover the proceeds of a voidable transaction.
Moreover, the fact that the statutory scheme of liquidation sufficiently provides for the winding up of a company without the need for equitable intervention does not support a conclusion that the interest of the company in receipt of a s 588FF(1)(a) payment is the same as that of the preferred creditor. To the contrary, it is precisely the presence of that detailed scheme that denies mutuality of interest.
To the extent that the cases of Re Parker[78], Buzzle Operations Pty Ltd (In liq) v Apple Computer Australia Pty Ltd[79], Shirlaw v Lewis[80], Hall v Poolman[81] and Stone v Melrose Cranes & Rigging Pty Ltd [No 2][82] are inconsistent with the above analysis, they should now be considered to be wrongly decided.
Nor, again, does the appellant's reliance upon the Harmer Report assist it. The decision said inferentially to have been made by Parliament not to enact, as part of s 553C, an express exclusion for voidable transactions may have taken place because, for the reasons set out in this judgment, no such exclusion was ever needed.
The presence of s 588FI within the statutory scheme of liquidation supports the outcome here. It will be recalled that this section applies when a creditor who has received an unfair preference has "put the company in the same position as if the transaction had not been entered into"[83]. The creditor may then prove in the winding up as if the transaction had not been entered into[84]. Permitting a preferred creditor to set off its liability under s 588FF(1)(a) with the liability owed to it by the company would undermine a purpose of the recovery of unfair preferences, revealed by this section, which is to restore to the pool of distributable assets those payments made under voidable transactions. A set-off, in contrast, would leave that pool diminished, for the reasons already expressed. Such an outcome can hardly have been intended.
The appeal should be dismissed.

[51]

For these reasons, the appeal should be dismissed, with costs in the cause.
GAGELER J. The question reserved for the consideration of the Full Court of the Federal Court of Australia was properly framed by reference to rights in issue in the ongoing proceeding in the Federal Court in which a liquidator (the first respondent in this Court) claims against a creditor (the appellant in this Court) an order, under s 588FF(1)(a) of the Corporations Act 2001 (Cth) ("the Act"), directing the creditor to repay to a company in liquidation (the second respondent in this Court) an amount equal to amounts that the company paid to the creditor in transactions which the liquidator claims to have been voidable because of s 588FE of the Act on the basis of those payments having been unfair preferences and insolvent transactions within the meanings of s 588FA and s 588FC of the Act.
Informing the answer to that question about specific rights in issue in the ongoing proceeding is an examination of the general question of statutory construction on which the outcome of this appeal turns. Does s 553C of the Act entitle a creditor to set off an amount equivalent to that received as an unfair preference in repayment of a debt, which the creditor is ordered under s 588FF(1)(a) of the Act to repay to a company in liquidation, against the amount of another debt which the creditor can prove in the winding up of the company?
To be observed at the outset is that the consequence of the creditor being entitled to set off the two amounts would be at odds with the scheme of Pt 5.6 of the Act, of which s 553C forms part. Within a system of winding up in which unsecured creditors of an insolvent company in liquidation generally rank pari passu in the distribution of the property of the company[86], an unfairly preferred creditor - who has by definition engaged in a transaction by which the creditor has received from the company more than the creditor would receive if the transaction were set aside and the creditor were to prove for the debt in the winding up of the company[87] - would be entitled to rely on the unfair preference to improve that creditor's position in relation to other creditors.
In the Full Court[88], Allsop CJ illustrated that consequence through a simple hypothetical example. The example assumes a creditor who has two debts each of $100 and who is unfairly preferred as to one in full. If the creditor is obliged by an order under s 588FF(1)(a) of the Act to repay the amount of the preferred debt in full, the property of the company available for distribution amongst all creditors is increased by $100. Upon repayment, the creditor can prove in the distribution for $200 as if the unfair preference had not occurred[89]. If, however, s 553C of the Act entitles the creditor to set off the amount ordered to be repaid under s 588FF(1)(a), the creditor automatically receives the functional equivalent of 50 cents in the dollar. Given that s 553C is self-executing[90], that occurs without the creditor needing to prove in the liquidation at all.
I agree with the joint reasons for judgment that the correct answer to the question of statutory construction is that s 553C of the Act does not entitle the creditor to such a set-off, that the Full Court accordingly gave the right answer to the question reserved for its consideration, that this appeal must therefore be dismissed, and that the costs of this appeal should be costs in the ongoing proceeding in the Federal Court.
I write to address an aspect of the concept of mutuality which is employed in the references to "mutual credits, mutual debts or other mutual dealings" in s 553C of the Act. The concept was central to the reasoning of the Full Court.
Though ancient, the concept of mutuality employed in those references is statutory. The concept must be understood purposively within the statutory context in which it is employed.
The purpose of s 553C of the Act, like that of s 86 of the Bankruptcy Act 1966 (Cth) on which it is modelled, is to prevent a creditor of an insolvent company who is also a debtor of that company being required to pay the full amount of the debt owed to the company and yet being entitled to receive only a fraction of the credit due from the company where that would result in substantial injustice[91]. With the object of confining the availability of set-off to circumstances where payment of the full amount of the debt without entitlement to the full amount of the credit would result in substantial injustice to a creditor, as distinct from unfairness to other creditors, the concept of mutuality has long been understood to entail that the burden of the debt and the benefit of the credit must lie in the same "equitable or beneficial interests"[92].
At the core of the argument of the appellant before the Full Court and in this appeal was the proposition that the analysis of interests in the context of assessing mutuality must be confined to a consideration of interests enforceable in equity. The proposition was correctly rejected by Allsop CJ in the Full Court[93].
To confine the analysis to a consideration of interests enforceable in equity would be to adopt an unduly narrow conception of "beneficial interests" which would divorce the statutory inquiry into mutuality from the statutory object of avoiding substantial injustice. Just as it is important always to recognise that an interest of a beneficiary of a trust "is not carved out of a legal estate but impressed upon it"[94], as a restriction on the manner in which the trustee may deal with trust property[95], it is important to recognise that legislation can impose restrictions on dealings with property for the benefit of persons other than the legal owner without occasion arising for any intervention of equity at all.
Whilst the making of an order for the winding up of a company in insolvency under Div 1 of Pt 5.4 of the Act does not result in property of the company becoming held on trust[96], it does result in dealings with property of the company thereafter being restricted by the scheme of Div 6 of Pt 5.6 of the Act to dealings for the purposes of the winding up[97]. Section 588FF(1)(a) is located within Pt 5.7B of the Act, which is accordingly described in its heading as being concerned with "[r]ecovering property or compensation for the benefit of creditors of insolvent company". An order under s 588FF(1)(a) of the Act can only be sought by a liquidator in the context and for the purposes of the winding up, and an amount to be paid pursuant to such an order must be paid to the company to be dealt with as property of the company in the winding up as governed by Div 6 of Pt 5.6 of the Act. The amount is not one which is or ever could be recovered by the company itself, or which is or ever could be paid to the company for the benefit of the company alone.
Hence, the right conferred on the liquidator to apply for an order under s 588FF(1)(a) of the Act is a statutory right "given for the benefit of the general body of creditors"[98] and recovery of an amount pursuant to such an order, if made, "inures wholly for the benefit of the persons who will participate under the winding-up"[99].
There is accordingly no mutuality of interest between an amount of an unfair preference which a creditor is ordered under s 588FF(1)(a) of the Act to repay to a company in liquidation and a debt incurred by the company provable by the creditor in the winding up of the company.

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