Deputy Commission of Taxation v Open Integration (Services) Pty Ltd ACN 091 742 737

[2006] FCA 878

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation, in the matter of Open Integration (Services) Pty Ltd (ACN 091 742 737) FCA [2006] 878

DEPUTY COMMISSION OF TAXATION v OPEN INTEGRATION (SERVICES) PTY LTD ACN 091 742 737

NSD1051 OF 2006

EMMETT J
30 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1051 OF 2006

In the matter of Open Integration (Services) Pty Ltd

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION PLAINTIFF
AND:	OPEN INTEGRATION (SERVICES) PTY LTD ACN 091 742 737 DEFENDANT
JUDGE:	EMMETT J
DATE OF ORDER:	30 JUNE 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The defendant be wound up.

2.Max Donnelly of Ferrier Hodgson be appointed the liquidator of the Defendant.

3.The plaintiff’s costs of these proceedings be fixed in the amount of $2,961.91

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1051 OF 2006

In the matter of Open Integration (Services) Pty Ltd

DEPUTY COMMISSIONER OF TAXATION PLAINTIFF
OPEN INTEGRATION (SERVICES) PTY LTD ACN 091 742 737 DEFENDANT
JUDGE:	EMMETT J
DATE:	30 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The plaintiff, the Deputy Commissioner of Taxation (‘Deputy Commissioner’), has applied under s 459P of the Corporations Act 2001 (Cth) for the winding up of the defendant, Open Integration Services Pty Ltd (‘the Company’). There was no appearance for the defendant other than by administrators, who were appointed on 26 June 2006. The administrators applied for an adjournment of the Deputy Commissioner’s application, to a date after the date when a meeting of creditors is required to be convened.

2. The Deputy Commissioner has indicated that there will be no opposition to an adjournment to a date prior to the date when the meeting of creditors is required to be convened.  However, the administrators have indicated that they do not seek an adjournment otherwise than to a date after the date for the meeting.  They say that they are not prepared to engage in any preparation for the meeting unless it is certain that the meeting will proceed.  The administrators have put forward the proposition that the interests of creditors will be served if the winding up application is adjourned to enable the director of the defendant to put forward, formally in writing, a proposal for a deed of company arrangement. 

3. However, the administrators have been unable to indicate to the Court any specific proposal that may be advanced by the director.  Further, I have no evidence before me to indicate how it is that the administrators were appointed on 26 June 2006.  The proceeding was commenced on 31 May 2006 and the application was served on 8 June 2006. 

4. Section 440A(2) provides that the Court is to adjourn the hearing of an application for an order to wind up a company if the company is under administration and the Court is satisfied that it is in the interests of the company’s creditors for the company to continue under administration rather than be wound up.

5. The Company is not trading and has substantial creditors.  If there were some evidence before me of a specific proposal, from a director, to provide funds that would enable some additional payment to be made to creditors, I may have been persuaded that it would be in the interests of the Company’s creditors for the application to be adjourned, to give them the opportunity of considering a deed of company arrangement.  However, in the absence of any evidence from the director and any evidence as to the nature of the proposal that might be advanced, I am not persuaded that it is in the interests of the Company’s creditors for the Company to continue under administration, rather than be wound up.

6. Accordingly, I do not consider that it is appropriate to grant an adjournment of the winding up application.  The Deputy Commissioner has therefore asked that the Court make a winding up order.  On the basis of the evidence filed on behalf of the Deputy Commissioner, I am persuaded that it is appropriate that the defendant be wound up.  Mr Max Donnelly of Ferrier Hodgson has consented to be appointed as liquidator of the Company and the Deputy Commissioner has provided a schedule of the costs incurred in the application to date. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            6 July 2006

Solicitor for the Applicant:	Craddock Murray Neumann
Solicitor for the Administrators:	KP Farmer & Associates
Date of Hearing:	30 June 2006
Date of Judgment:	30 June 2006