Deputy Commissioner of Taxation, in the matter of Manton International Pty Ltd (ACN 003 810 437), v Manton International Pty Ltd (ACN 003 810 437)

[2005] FCA 1622

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation, in the matter of Manton International Pty Ltd (ACN 003 810 437), v Manton International Pty Ltd (ACN 003 810 437) [2005] FCA 1622

IN THE MATTER OF MANTON INTERNATIONAL PTY LTD (ACN 003 810 437)

DEPUTY COMMISSIONER OF TAXATION v MANTON INTERNATIONAL PTY LTD (ACN 003 810 437)
NSD 1778 OF 2005

GYLES J

4 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1778 OF 2005

IN THE MATTER OF MANTON INTERNATIONAL PTY LTD
(ACN 003 810 437)

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION PLAINTIFF
AND:	MANTON INTERNATIONAL PTY LTD (ACN 003 810 437) DEFENDANT
JUDGE:	GYLES J
DATE OF ORDER:	4 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for adjournment be refused.

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 1778 OF 2005

IN THE MATTER OF MANTON INTERNATIONAL PTY LTD
(ACN 003 810 437)

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION PLAINTIFF
AND:	MANTON INTERNATIONAL PTY LTD (ACN 003 810 437) DEFENDANT

JUDGE:	GYLES J
DATE:	4 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 459P of the Corporations Act 2001 (Cth) by the plaintiff Deputy Commissioner of Taxation to wind up a company, Manton International Pty Ltd. The proceeding was filed on 23 September 2005 and served by post, I am informed, on that day. There is an affidavit of service of EM Barrington Timpany sworn 31 October 2005 which establishes that.

2. This is the first return day of this matter.  It is based upon a statutory demand by the plaintiff which was served on 5 August 2005.  No steps have been taken to set aside that demand and there is no evidence of any challenge to the underlying assessment.  I should say, however, that the demand is not based upon a judgment.

3. Various documents have been filed irregularly, purporting to be on behalf of the defendant company, since 23 September 2005.  None of these documents has been filed by a solicitor as required by O 9 r 1(3) of the Federal Court Rules and, looking at them (without studying them carefully) they appear to be not in any proper form.  Moreover, the documents seek to raise issues which, on their face, are untenable and an abuse of the process of the Court. 

4. Mr Magyari has appeared today with leave on behalf of the company identifying himself as a consultant and a former director of that company.  He seeks an adjournment of the proceedings on the basis that the legal adviser of the company is unavailable through illness and that he wishes to pursue some form of inquiry including by way of the Freedom of Information Act 1982 (Cth). When I asked whether the legal adviser concerned was a practitioner of the Court he said ‘no’. That seems to be consistent with the documents which have been filed or purported to be filed on behalf of the company which claim, in effect, that it is not subject to the jurisdiction of Australia or of this Court.

5. It was said at one point that there was a challenge to the taxation assessment in the Administrative Appeals Tribunal.  I am informed that the plaintiff knows nothing of any such challenge and the only document which has been tendered in relation to it does not support that statement.

6. There is no evidence brought by or on behalf of the defendant to explain any matter relevant to the application for adjournment.  I indicated to Mr Magyari that the only basis upon which an adjournment would be granted would be if the defendant was in a position to pay the costs of the plaintiff of today.  He indicated that he had no money to meet any such order and I presume by that he is accepting that the company does not have any such money either. 

7. It is quite clear to me that no proper basis for an adjournment has been established.  The only hesitation I have is that this is the first return of the matter but there has been ample time since the service (more than six weeks) for the defendant to raise any legitimate concerns.  In the absence of any such concerns and in the absence of any certainty that the costs which have been wasted by today's appearance will be paid, it seems to me that to adjourn the matter would be a waste of time.  I propose to hear the matter now.  The leave of Mr Magyari to appear on behalf of the defendant company has now expired.

   (The Judge proceeded to deal with the application.)

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

Associate:

Dated:             9 November 2005

Solicitor for the Plaintiff:	M Murray of the Australian Government Solicitor
Mr Magyari appeared by leave for the Defendant on the application for adjournment
Date of Hearing:	4 November 2005
Date of Judgment:	4 November 2005