Deputy Commissioner of Taxation, in the matter of Crowhurst Pty Ltd (In Liq) v Crowhurst Pty Ltd (In Liq)
[2015] FCA 54
•6 February 2015
FEDERAL COURT OF AUSTRALIA
Deputy Commissioner of Taxation, in the matter of Crowhurst Pty Ltd (In Liq) v Crowhurst Pty Ltd (In Liq) [2015] FCA 54
Citation: Deputy Commissioner of Taxation, in the matter of Crowhurst Pty Ltd (In Liq) v Crowhurst Pty Ltd (In Liq) [2015] FCA 54 Parties: DEPUTY COMMISSIONER OF TAXATION v CROWHURST PTY LTD ACN 063 093 210 File number: WAD 130 of 2011 Judge: BARKER J Date of judgment: 6 February 2015 Catchwords: CORPORATIONS – application for the release of a liquidator and deregistration of a company under s 480(d) of the Corporations Act 2001 (Cth) – application for a direction under s 542(3) of the Corporations Act for the destruction of a company’s books Legislation: Corporations Act 2001 (Cth) s 480, s 480(a), s 480(c), s 480(d), s 542, s 542(3)(a)
Federal Court (Corporations) Rules 2000 (Cth) R 2.8(3), R 7.5(6)
Date of hearing: 6 February 2015 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant in the Interlocutory Application: Mr M Richards Solicitor for the Applicant in the Interlocutory Application: Rowe Bristol Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 130 of 2011
IN THE MATTER OF CROWHURST PTY LTD (IN LIQ) (ACN 063 093 210)
BETWEEN: DEPUTY COMMISSIONER OF TAXATION
PlaintiffAND: CROWHURST PTY LTD ACN 063 093 210
DefendantOTHER: GIOVANNI MAURIZIO CARRELLO AS LIQUIDATOR OF CROWHURST PTY LTD (IN LIQ) ACN 063 093 210
Applicant in the Interlocutory Application
JUDGE:
BARKER J
DATE OF ORDER:
6 FEBRUARY 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant be released from his position as liquidator of the defendant.
2.The defendant be deregistered by the Australian Securities and Investments Commission.
3.All books of the defendant and of the applicant that are relevant to the affairs of the defendant, at or subsequent to the commencement of the winding up of the defendant, may be destroyed by the applicant six months after the deregistration of the defendant.
4.The applicant’s costs of and incidental to this application are costs in the liquidation of the defendant and those costs be paid from the assets of the defendant.
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 130 of 2011
IN THE MATTER OF CROWHURST PTY LTD (IN LIQ) (ACN 063 093 210)
BETWEEN: DEPUTY COMMISSIONER OF TAXATION
PlaintiffAND: CROWHURST PTY LTD ACN 063 093 210
DefendantOTHER: GIOVANNI MAURIZIO CARRELLO AS LIQUIDATOR OF CROWHURST PTY LTD (IN LIQ) ACN 063 093 210
Applicant in the Interlocutory Application
JUDGE:
BARKER J
DATE:
6 FEBRUARY 2015
PLACE:
PERTH
REASONS FOR JUDGMENT
On 14 June 2011, the Court made an order that Crowhurst Pty Ltd, the company, be wound up in insolvency and that the applicant be appointed liquidator to that end.
The liquidator now applies, pursuant to s 480(c) and s 542(3)(a) of the Corporations Act 2001 (Cth) for orders that:
(1)The liquidator be released from his position as liquidator of the company; and
(2)The company be deregistered by the Australian Securities and Investments Commission (ASIC).
The liquidator also seeks directions that:
(3)All books of the company and the liquidator that are relevant to the affairs of the company, at or subsequent to the commencement of the winding up of the company, may be destroyed by the liquidator six months after the deregistration of the company; and
(4)The liquidator’s costs of and incidental to this application be costs in the liquidation of the company and be paid from the assets of the company.
The question now falling for consideration is whether these orders should be made.
SHOULD THE RELEASE ORDER BE MADE?
Section 480 of the Corporations Act provides as follows:
480 Release of liquidator and deregistration of company
When the liquidator:
(a) has realised all the property of the company or so much of that property as can in his or her opinion be realised without needlessly protracting the winding up, and has distributed a final dividend (if any) to the creditors and adjusted the rights of the contributories among themselves and made a final return (if any) to the contributories; or
(b) has resigned or has been removed from office;
he or she may apply to the Court:
(c) for an order that he or she be released; or
(d) for an order that he or she be released and that ASIC deregister the company.
While the interlocutory process seeking the above release order is stated to be made, in this respect, under s 480(c), the liquidator also seeks an order that the company be deregistered by ASIC. Thus, it would appear that the interlocutory process is made under s 480(d) and the Court proceeds on this basis.
The application in this regard is supported by an affidavit of the liquidator made 6 November 2014 and a further affidavit made 4 February 2015, as well as by an affidavit of Mr Mark Alexander Kenneth Richards, legal practitioner, made 4 February 2015.
Indeed, the affidavit of Mr Richards makes clear that the application is made under s 480(d).
Mr Richards confirms that pursuant to R 7.5(6) of the Federal Court (Corporations) Rules 2000 (Cth), the interlocutory process and the affidavit of the liquidator made 6 November 2014 have been served on each contributory and creditor who has proved a debt in the course of the winding up, who are the Australian Taxation Office, Keady Humble Tognini Chartered Accounts and Telstra Corporation Limited.
I am satisfied that the requirements of s 480(a) have been met and that it is appropriate that an order be made under s 480(d).
SHOULD THE DESTRUCTION ORDER BE MADE?
Section 542 provides:
542 Books of company
(1) Where a company is being wound up, all books of the company and of the liquidator that are relevant to affairs of the company at or subsequent to the commencement of the winding up of the company are, as between the contributories of the company, prima facie evidence of the truth of all matters purporting to be recorded in those books.
(2) If a company has been wound up, the liquidator must retain the books referred to in subsection (1) for a period of 5 years from the date of deregistration of the company and, subject to section 262A of the IncomeTax Assessment Act 1936, may, at the end of that period, destroy them.
(3) Despite subsection (2) but subject to subsection (4), when a company has been wound up, the books referred to in subsection (1) may be destroyed within a period of 5 years after the deregistration of the company:
(a)in the case of a winding up by the Court—in accordance with the directions of the Court given pursuant to an application of which at least 14 days notice has been given to ASIC; and
(b)in the case of a members’ voluntary winding up—as the company by resolution directs; and
(c)in the case of a creditors’ voluntary winding up—as the committee of inspection directs, or, if there is no such committee, as the creditors of the company by resolution direct.
(4) The liquidator is not entitled to destroy books as mentioned in paragraph (3)(b) or (c) unless ASIC consents to the destruction of those books.
Pursuant to R 2.8(3) of the Rules, a copy of the documents has also been served on ASIC, thus the requirement of s 542(3)(a) is met.
ASIC have since indicated that it has no objection to the orders sought and does not intend to appear at the hearing.
I am also satisfied, in the circumstances, that the requirement of the Act and the Rules regarding service of the application on ASIC having been made, it is appropriate that destruction orders should be made in terms of the application, there being no reason why this should not occur.
SHOULD COSTS BE ORDERED?
Finally, the costs order is also appropriate in the circumstances.
CONCLUSION AND ORDERS
For the reasons given above, it is appropriate that orders be made in the terms proposed by the interlocutory process.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.
Associate:
Dated: 6 February 2015
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