Commonwealth v Hendon Industrial Park Pty Ltd

[1995] FCA 429

C A T C H W O R D S

CORPORATIONS - provisional liquidator - circumstances leading to appointment - sufficiency of information to warrant appointment.

Income Tax Assessment Act 1936 (Cth)
Corporations Law
Corporate Law Reform Act 1992 (Cth)
Taxation Administration Act 1953 (Cth)

Commonwealth of Australia v Duncan [1981] VR 879
Carapark Industries Pty Ltd (In liq.) & Companies Act 1961 (No 1) [1967] 1 NSWR 337
Re Codisco Pty Ltd (1974) ACLC 27,897
Pitt v Bachmann; Re Lockyer Valley Fresh Foods Co-operative   Association Limited (1980) ACLC 34,468 (FC)
Re Club Mediterranean Pty Ltd (1975) 11 SASR 481
Re Saldowa Pty Ltd (1986) 4 ACLC 200
Brimaud v Honeysett Instant Print Pty Ltd (1988) 6 ACLC 942.
Re Adnot Pty Ltd (1982) 1 ACLC 307

COMMONWEALTH OF AUSTRALIA  Applicant
- and -
HENDON INDUSTRIAL PARK PTY LIMITED               Respondent

O'LOUGHLIN
ADELAIDE
9 JUNE 1995

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
SOUTH AUSTRALIAN DISTRICT REGISTRY )
  )
GENERAL DIVISION                  )   No. SG 3050 of 1995

B E T W E E N:

COMMONWEALTH OF AUSTRALIA

Applicant

- and -

HENDON INDUSTRIAL PARK PTY LIMITED

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER            :        O'LOUGHLIN J.

WHERE MADE  :        ADELAIDE

DATE OF ORDER                 :      9 JUNE 1995     

THE COURT ORDERS THAT:

1. Peter Ivan Macks of 14th Floor, 26 Flinders Street, Adelaide be and is hereby appointed the provisional liquidator of Hendon Industrial Park Pty Limited.

1. The applicant bring in short minutes of order specifying the powers of the provisional liquidator and a short description of the property of which the provisional liquidator is to take possession.

1. The costs of the application be paid by the respondent.

1. There be leave to speak to the minutes.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
SOUTH AUSTRALIAN DISTRICT REGISTRY )
  )
GENERAL DIVISION                  )   No. SG 3050 of 1995

B E T W E E N:

COMMONWEALTH OF AUSTRALIA

Applicant

- and -

HENDON INDUSTRIAL PARK PTY LIMITED

Respondent

REASONS FOR JUDGMENT

Coram: O'Loughlin J.
Place: Adelaide
Date : 9 June 1995

On 5 May 1995, the applicant, the Commonwealth of Australia, claiming to be a creditor of the company, filed an application in this court under s459P of the Corporations Law ("the Law") claiming an order pursuant to that section that the respondent, Hendon Industrial Park Pty Limited ("Hendon") be wound up on the ground of its insolvency.  The applicant contemporaneously moved on notice for the appointment of a provisional liquidator under subs472(2) of the Law.

The applicant's claim was that Hendon is indebted to it for income tax (and additional tax for an incorrect return) in an amount slightly in excess of $2.5M; to this sum there is additional tax for late payment, at the statutory rate, to 1 May 1995 so that the total amount claimed as at that date, pursuant to a notice…