Deputy Commissioner of Taxation, in the matter of Deputy Commissioner of Taxation v British Finance Pty Ltd ABN 52 096 757 836

[2006] FCA 301

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation, in the matter of Deputy Commissioner of Taxation v British Finance Pty Ltd ABN 52 096 757 836 [2006] FCA 301

CORPORATIONS – insolvency – application for termination of winding up order

Corporations Act 2001 (Cth), s 482

IN THE MATTER OF BRITISH FINANCE PTY LTD ABN 52 096 757 836; DEPUTY COMMISSIONER OF TAXATION v BRITISH FINANCE PTY LTD ABN 52 096 757 836; ROBERT WHITTON AS LIQUIDATOR OF BRITISH FINANCE PTY LTD (IN LIQUIDATION) AND MICHAEL SAADIE
NSD 2176 OF 2005

GYLES J
24 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2176 OF 2005

IN THE MATTER OF BRITISH FINANCE PTY LTD ABN 52 096 757 836

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
PLAINTIFF

AND:

BRITISH FINANCE PTY LTD (ABN 52 096 757 836)
DEFENDANT

ROBERT WHITTON AS LIQUIDATOR OF BRITISH FINANCE PTY LTD (IN LIQUIDATION)
FIRST RESPONDENT

MICHAEL SAADIE
SECOND RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

24 FEBRUARY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The time for making the application for review of Registrar’s orders made and entered on 16 December 2005 be extended up to and including 25 January 2006.

2.The orders made and entered on 16 December 2005 by Registrar Hedge be set aside.

3.The Originating Process dated 11 November 2005 be dismissed.

4.The plaintiff to pay the costs of the first respondent in the sum of $7,000 plus GST within seven days of this order.

5.The plaintiff to pay the first respondent’s legal costs in the sum of $3,184.50 within seven days.

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	NSD 2176 OF 2005

IN THE MATTER OF BRITISH FINANCE PTY LTD ABN 52 096 757 836

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
PLAINTIFF

AND:

BRITISH FINANCE PTY LTD (ABN 52 096 757 836)
DEFENDANT

ROBERT WHITTON AS LIQUIDATOR OF BRITISH FINANCE PTY LTD (IN LIQUIDATION)
FIRST RESPONDENT

MICHAEL SAADIE
SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	24 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a matter in which the Registrar made an order on 16 December 2005 winding up British Finance Pty Ltd (ABN 52 096 757 836) (the company).  It is clear from the evidence that the order should not have been made because the evidence for the plaintiff was deficient as it did not take into account events concerning the payment of outstanding liabilities. This lead to the affidavit upon which the order was made being incorrect.  If the correct facts had been known then, no doubt, an order would not have been made.  I should note that no creditor attended the hearing to support or oppose the order.  It also appears that the company did not become aware of the proceedings because of an error concerning its registered office so there was, in fact, a series of errors.  I am satisfied from the evidence that, in any event, there is no reason to believe that the company is insolvent and, indeed, the evidence is to the contrary.

2. That being so, I have no doubt that the liquidation should be reversed. It was put to me that one mechanism for doing this is for there to be a review of the Registrar's orders rather than for there to be an order terminating the winding up pursuant to s 482 of the Corporations Act 2001 (Cth). On reflection, it seems to me that in this matter a review can properly lead to a discharge of the orders in question. I have set out the facts. They are unusual, and an order made upon an incorrect footing such as this should not be allowed to remain. There may be consequences in having an order made which is later terminated.

3. There is no practical difficulty in the present case because the liquidator's costs and legal costs are being paid and there are no other intervening third parties’ interests at stake.  Therefore, I make the orders set out in the short minutes of order which I will place with the papers.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:  27 March 2006

Counsel for the Plaintiff:	MP Cleary
Solicitor for the Plaintiff:	Legal Services Branch, Australian Taxation Office
Counsel for the Defendant:	The Defendant did not appear
Solicitor for the First Respondent:	Michael K Bacina of Leonard Legal
The Second Respondent appeared in person
Date of Hearing:	24 February 2006
Date of Judgment:	24 February 2006