Cribb as Liquidator of Scaff-Tec Pty Ltd (in Liquidation) v Commissioner of Taxation

[2013] FCA 1283

FEDERAL COURT OF AUSTRALIA

Cribb as Liquidator of Scaff-Tec Pty Ltd (in Liquidation) v Commissioner of Taxation [2013] FCA 1283

Citation:	Cribb as Liquidator of Scaff-Tec Pty Ltd (in Liquidation) v Commissioner of Taxation [2013] FCA 1283
Parties:	NEIL RAYMOND CRIBB AS LIQUIDATOR OF SCAFF-TEC PTY LIMITED (IN LIQUIDATION) v COMMISSIONER OF TAXATION and GIOCOMINO RUSSO
File number:	WAD 257 of 2013
Judge:	GILMOUR J
Date of judgment:	19 November 2013
Legislation:	Corporations Act 2001 (Cth) s 588FF, 588FGA(2)
Date of hearing:	19 November 2013
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	7
Counsel for the 1st Defendant:	Ms M Spurge
Solicitor for the 1st Defendant:	Australian Taxation Office

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 257 of 2013

BETWEEN:

NEIL RAYMOND CRIBB AS LIQUIDATOR OF SCAFF-TEC PTY LIMITED (IN LIQUIDATION)
Plaintiff

AND:

COMMISSIONER OF TAXATION
First Defendant

GIOCOMINO RUSSO
Second Defendant

JUDGE:	GILMOUR J
DATE OF ORDER:	19 NOVEMBER 2013
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.It is hereby declared that the second defendant is liable to indemnify the first defendant pursuant to subsection 588FGA(2) of the Corporations Act 2001 (Cth) (the Act) in respect of the first defendant’s loss or damage as a result of any order made in these proceedings against the first defendant under section 588FF of the Act.

2.The second defendant pay to the first defendant the sum of $84,229.47, together with such other or further sum, including interest and costs, being the amount of the first defendant’s loss or damage resulting from any order made against the first defendant under section 588FF of the Act.

3.The second defendant pay the first defendant’s costs of the interlocutory process dated 4 September 2013, fixed in the sum of $1,045.00.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 257 of 2013

BETWEEN:

NEIL RAYMOND CRIBB AS LIQUIDATOR OF SCAFF-TEC PTY LIMITED (IN LIQUIDATION)
Plaintiff

AND:

COMMISSIONER OF TAXATION
First Defendant

GIOCOMINO RUSSO
Second Defendant

JUDGE:	GILMOUR J
DATE:	19 NOVEMBER 2013
PLACE:	PERTH

REASONS FOR JUDGMENT

1. I delivered ex tempore reasons for judgment in this matter on 19 November 2013.  These are my reasons, edited but not so as to alter their substance.

2. The Court made orders, by consent, on 18 November 2013, that the first defendant (the Commissioner) pay to the first plaintiff, the sum of $120,488.47 in full and final satisfaction of the claim against the Commissioner, pursuant to s 588FF of the Corporations Act 2001 (Cth) (the Act).

3. The Commissioner, in turn, has sought a declaration under s 588FGA(2) of the Act that the second defendant, Giocomino Russo, who was relevantly a director of the plaintiff at all material times, is liable to indemnify the Commissioner in respect of the Commissioner’s loss or damage as a result of the order made against him, together with an order that he pay that amount to him. The terms of the declaration and the sum claimed by way of payment are contained in a Minute provided by the Commissioner.

4. The application is supported by an affidavit of Sumith De Silva, an employee in the Debt Business Line of the Australian Taxation Office in Parramatta in the State of New South Wales, sworn on 29 August 2013, and an affidavit of Melissa Anne Spurge, an employee of the Australian Taxation Office employed in its Dispute Resolution Area in Northbridge in the State of Western Australia, sworn 19 November 2013. I also have an affidavit of service of Helen Shaw sworn 26 September 2013, deposing to service upon Mr Russo of the number of documents set out in para 2 of her affidavit, including the interlocutory process dated 4 September 2013, which is the application by which the declaration that Mr Russo is liable to indemnify the Commissioner, pursuant to s 588FGA(2) of the Act, is to be found, as well as an order for payment of the relevant sum by him to the Commissioner.

5. I am satisfied that the Commissioner is entitled to the declaration and the order for payment, although the amount claimed in the interlocutory process dated 4 September 2013, as well as the Minute each contains the same typographical error.  The actual amount the subject of the declaration and payment order is $84,229.47 rather than $88,229.47.  Mr Russo did not appear but I am satisfied by the affidavit of Ms Spurge that he was given due notice that the declaratory relief and payment order, the subject of the application, would be heard by the Court this morning. 

6. Accordingly, for these reasons and subject to correcting the typographical error referred to above, I will make the declaration in para 1 and the order in para 2 of the Minute. 

7. I will also make an order in terms of para 3 in the Minute that Mr Russo pay the Commissioner’s costs of the interlocutory process dated 4 September 2013, fixed in the sum of $1045.  This is the sum of the total of the filing fee of the interlocutory process and the cost of the service of the interlocutory process on Mr Russo.   

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       16 December 2013