Deputy Commissioner of Taxation, in the matter of Harvard Marine International Pty Ltd v Harvard Marine International Pty Ltd

[2011] FCA 1381

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation, in the matter of Harvard Marine International Pty Ltd v Harvard Marine International Pty Ltd [2011] FCA 1381

Citation:		Deputy Commissioner of Taxation, in the matter of Harvard Marine International Pty Ltd v Harvard Marine International Pty Ltd [2011] FCA 1381
Parties:		DEPUTY COMMISSIONER OF TAXATION v HARVARD MARINE INTERNATIONAL PTY LTD (ACN 121 513 880)
File number:		WAD 139 of 2011
Judge:		SIOPIS J
Date of judgment:		15 November 2011
Date of hearing:	15 November 2011
Date of Publication of Reasons:	6 December 2011
Place:	Perth
Division:	GENERAL DIVISION
Number of paragraphs:	11
Counsel for the Plaintiff:	Ms J Ding
Solicitor for the Plaintiff:	ATO Legal Services Branch
Counsel for the Defendant:	Ms L Horwood
Solicitor for the Defendant:	L Horwood Solicitors
Mr B Hughes, Liquidator of the Defendant, appeared in person.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 139 of 2011

IN THE MATTER OF HARVARD MARINE INTERNATIONAL PTY LTD (ACN 121 513 880)

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff
AND:	HARVARD MARINE INTERNATIONAL PTY LTD (ACN 121 513 880) Defendant

JUDGE:	SIOPIS J
DATE OF ORDER:	6 DECEMBER 2011
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The defendant’s application to stay the winding up order of District Registrar Jan, dated 19 July 2011, is dismissed.

2.The question of costs is reserved.

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 139 of 2011

IN THE MATTER OF HARVARD MARINE INTERNATIONAL PTY LTD (ACN 121 513 880)

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff
AND:	HARVARD MARINE INTERNATIONAL PTY LTD (ACN 121 513 880) Defendant

JUDGE:	SIOPIS J
DATE:	6 DECEMBER 2011
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 15 November 2011, I made orders dismissing the defendant’s application to stay the winding up order of District Registrar Jan made on 19 July 2011.

2. On 19 July 2011, District Registrar Jan ordered that the defendant, Harvard Marine International Pty Ltd, be wound up in insolvency and that Mr Bryan Hughes be appointed as liquidator of the affairs of the defendant.  The application for winding up was made by the Deputy Commissioner of Taxation.  The evidence before District Registrar Jan was that the Deputy Commissioner of Taxation had on 28 January 2011, served a statutory demand on the defendant for payment of $56,345.42, and the defendant had failed to pay that amount within the 21 days after the demand was served on the defendant.  The defendant opposed the making of the winding up order on the basis that it soon expected to be in a “positive cash‑flow position” due to the anticipated establishment of an oil and gas technician training facility in Ghana.  There was before the District Registrar a hearsay affidavit sworn by Ms Louise Horwood, the defendant’s solicitor, in support of this contention.

3. On 26 October 2011, the defendant, without having obtained the leave of the Court or the liquidator, filed an application in the Court headed “interlocutory application”, which sought a stay of “the current winding up order”.

4. On 26 October 2011, there was filed in support of that application, an affidavit sworn by Mr Ronald Adrian McGrath, who deposed that he was a director of the defendant.  Mr McGrath said that he believed that the defendant was in the process of establishing an oil and gas technician training facility in Ghana.  Mr McGrath went on to state that it was his belief that the training facility would provide a positive cash‑flow and would be solvent within three months.

5. The matter was listed for mention on 15 November 2011.  When the matter was called, the Deputy Commissioner and Mr Hughes, the liquidator, applied for the application to be summarily dismissed on the basis that the company, being in liquidation, had no standing to make the application.

6. In support of the application, the Deputy Commissioner referred to s 482(1A) of the Corporations Act 2001 (Cth), to the effect that a company in liquidation had no standing to bring an application to stay a winding up under s 482 of the Act.

7. I raised with counsel for the defendant whether the application for a stay of the winding up order, had been made consequent upon the defendant having made, at the instance of its director, an application to review District Registrar Jan’s winding up order.  However, counsel for the defendant, advised me that no such application had been made.  Further, counsel for the defendant, was unable to identify the basis upon which the stay application had been made.

8. In my view, the defendant, at the instance of its director, had no standing to bring an application to stay the winding up order made on 19 July 2011, pursuant to s 482 of the Corporations Act.

9. Further, the defendant, at the instance of its director, had neither made an application pursuant to s 471A(1A) of the Corporations Act, for leave to bring an application to review the decision of the District Registrar of 19 July 2011, nor, indeed, had it purported to make any such application even without leave.  In those circumstances, there was no basis upon which the defendant’s application for a stay of the winding up order, could have been regarded as an application for interlocutory relief pending the determination of a review application.

10. There was, therefore, no reasonable prospect that the defendant’s application for a stay of the winding up order would succeed. In those circumstances, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), the defendant’s application was dismissed.

11. I might add that, in any event, insofar as the application was intended to be interlocutory, pending a review of the District Registrar’s decision, the evidence of Mr McGrath in his affidavit of 26 October 2011, did not demonstrate any basis upon which to grant leave under s 471A(1A) of the Corporations Act to bring such a review application, even if such an application for leave had been made.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        6 December 2011