ACN 078 272 867 (In Liquidation) (Formerly Advance Finances Pty Limited) & Anor v Commissioner of Taxation & Anor; Binetter v Commissioner of Taxation & Anor

[2011] HCATrans 256

[2011] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S167 of 2011

B e t w e e n -

ACN 078 272 867 (IN LIQUIDATION) (FORMERLY ADVANCE FINANCES PTY LIMITED)

First Plaintiff

ACN 087 623 541 (IN LIQUIDATION) (FORMERLY CIVIC FINANCES PTY LIMITED)

Second Plaintiff

and

COMMISSIONER OF TAXATION

First Defendant

THE FEDERAL COURT OF AUSTRALIA AND JUDGES THEREOF

Second Defendant

Office of the Registry
  Sydney  No S210 of 2011

B e t w e e n -

GARY BINETTER

Plaintiff

and

COMMISSIONER OF TAXATION

First Defendant

THE FEDERAL COURT OF AUSTRALIA AND JUDGES THEREOF

Second Defendant

Applications for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 12 SEPTEMBER 2011, AT 9.29 AM

Copyright in the High Court of Australia

____________________

MS R.L. SEIDEN:   If it please the Court, I appear with my learned friend, MS S. KAUR‑BAINS, for the plaintiff in both matters.  (instructed by Signet Lawyer Pty Limited)

MR M.L. BRABAZON, SC:   May it please the Court, I appear with my learned friend, MR A.J. O’BRIEN, for the first defendant in both matters.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Ms Seiden, you want a timetable.

MS SEIDEN:   Thank you, your Honour.

HIS HONOUR:   Do you have an agreement on that?

MS SEIDEN:   I believe we do, your Honour.  It is for the defendant to file any evidence within two weeks and then the plaintiffs to file written submissions two weeks after that and then the defendant to file written submissions two weeks after that, if it please the Court.

HIS HONOUR:   Then the matter brought back here presumably seven days after that?

MS SEIDEN:   Yes, thank you, your Honour.

HIS HONOUR:   I should just raise this, Ms Seiden.  There is a big question, which is, if Justice Jagot had proceeded in the way you contend she should have done, namely, first to consider whether to reinstate the company and then at a later time to consider whether it should be put into liquidation, a question arises whether anything could have been said on the second occasion that was not said on the first occasion and if it could have been, why it was not?  It need not be answered now, but perhaps it should be considered before – because these remedies you are seeking are discretionary remedies and that may be a relevant discretionary factor.

MS SEIDEN:   If I could mention one matter, your Honour.  The plaintiffs would seek to make a minor amendment to the application for an order to show cause, which I understand my learned friend has no problem with.  That would raise an issue that there has been error of law on the face of the record and also amending the application in relation to costs.  That might go some way to answer your Honour’s question, but certainly the plaintiffs also claim jurisdictional error by reason of breach of procedural fairness, that if, as Justice Jagot determined, there could have been a simultaneous winding up, then the companies were not afforded a hearing and, in that case, the plaintiffs contend that they would be entitled to have the orders set aside.  I hear your Honour’s points and they will be certainly considered and addressed in the submissions.

HIS HONOUR:   I think so far as amendments are concerned, unless you actually have an agreed document ‑ ‑ ‑

MS SEIDEN:   Yes, we have.

HIS HONOUR:   Very well.  If you hand that up, I will make that order now.

MS SEIDEN:   Thank you, your Honour.

HIS HONOUR:   This is an amendment that applies both in the company’s proceedings and the director’s proceedings?

MS SEIDEN:   Yes.  The director’s proceeding has the amendment in relation to costs and they both have the amendment in relation to error of law on the face of the record, your Honour.

HIS HONOUR:   Yes.  Mr Brabazon, I understand you do not object to these amendments?

MR BRABAZON:   That is correct, your Honour.

HIS HONOUR:   Is there anything you want to add, Mr Brabazon, to what Ms Seiden has been saying?

MR BRABAZON:   No, your Honour.  There are other matters that have been happening between the parties, but it is unnecessary to trouble the Court with any of those at this stage.

HIS HONOUR:   By consent I make the following orders, and these orders will apply in both S167 of 2011 and S210 of 2011:

1.The amended application in each proceeding be amended in accordance with documents which have been handed to the Court this morning and will remain with the file.

2.The first defendants file any evidence on which it wishes to rely within 14 days.

3.The plaintiffs file written submissions within a further 14 days.

4.The first defendants file written submissions within a further 14 days.

5.The matter be listed for a directions hearing seven days thereafter.

If there is nothing else?

MS SEIDEN:   Thank you.

HIS HONOUR:   Thank you.

AT 9.35 AM THE MATTERS WERE ADJOURNED