Burwood Retail Pty Ltd & Scandi Queensland Pty Ltd v Deputy Commissioner of Taxation
[2002] VSC 275
•20 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 8917 of 2001
| BURWOOD RETAIL PTY LTD | Plaintiff |
| v | |
| DEPUTY COMMISSIONER OF TAXATION OF COMMONWEALTH OF AUSTRALIA | Defendant |
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No. 8919 of 2001
| SCANDI QUEENSLAND PTY LTD | Plaintiff |
| v | |
| DEPUTY COMMISSIONER OF TAXATION OF COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2002 | |
DATE OF JUDGMENT: | 20 June 2002 | |
CASE MAY BE CITED AS: | Burwood Retail P/L and Scandi Queensland P/L v Deputy Commissioner of Taxation | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 275 | |
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Companies – statutory demand – period for compliance – extension of period for compliance – discretion – extension refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr Joseph Guss (solicitor) | |
| For the Defendant | Ms C. Mavroudis | ATO Legal Practice |
HIS HONOUR:
These are the reasons for my decision in applications brought in proceeding No. 8917 of 2001, in which Burwood Retail Pty Ltd is plaintiff and Deputy Commissioner of Taxation defendant, and in proceeding 8919 of 2001 in which Scandi Queensland Pty Ltd is plaintiff and Deputy Commissioner of Taxation is defendant.
The application before the court in each case is brought pursuant to s. 459F(2)(1) of the Corporations Law to extend time for compliance with the statutory demand. The alleged debt said to be owing to the taxation office dates back to periods commencing in 1998 and continuing to a period in June 2000. The notice of demand served on the companies was dated 30 November 2001 and served on 3 December 2001.
The application brought in each case by the company to set aside the notice of demand was brought on the last available day, 24 December 2001. The matter has for various reasons been adjourned on four occasions and finally came on for hearing before the Master on 13 June 2002. On that occasion the Master made orders in one case expressly dismissing the application, and in others, making orders which have been accepted by the parties before me as having the same effect. The basis of the present application is that the time for compliance with the statutory demand expires seven days after the final determination. On one view the final determination was 13 June so that the period expires today.
The company in each case has brought an appeal from the Master's order and that appeal is to be heard in the Corporations List on 2 August. It was pointed out to me that there is presently some uncertainty as to whether the effect of s.459F(2)(2) is that the time for compliance is automatically extended on the basis that the application is not finally decided until the appeal is determined. As I say, I have been told that there are differing views been expressed about this, and I express myself no view as to which is the correct interpretation. I am prepared to proceed on the basis most conservative, that is to say time is running and will at the end of this day have run for compliance by each of the companies with this statutory demand.
The argument presented on behalf of the companies was that in these circumstances it would be appropriate to extend the time for compliance so as to avoid the difficulty which would arise if the appeal should be successful on 2 August or whenever it is heard. In such a case any winding up application which might otherwise be brought by the tax office, or order made pursuant to it, would cease to have any effect. It was put with some force to my mind, that the proper course should be to preserve the rights of the companies in each case to bring their appeal, which appeal is of right, without the prospect that at the same time they would have to defend a winding up application.
I should add finally that in order to avoid the difficulties I offered to hear the matter forthwith so that the question of the time would not arise. But for reasons which I will not go into, that course is not acceptable on behalf of the companies.
Ultimately the question comes to my mind down to a matter of discretion, and in my discretion I decided to refuse the application. I do so because the alleged debt and the notice of demand are each old, and further because the scheme of Part 5.4 of the legislation is for a speedy winding up of debtor companies. If it should hereafter appear that the appeals are well-founded, doubtless the consequences that I have mentioned will follow. But in the meantime I have formed the clear view that I should not take any step pursuant to s. 459F(2)(b) to extend the time myself.
Accordingly the application in each case is refused. ---
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