Deputy Commissioner of Taxation, in the matter of South Western Produce Pty Ltd (in liq) v South Western Produce Pty Ltd

[2006] FCA 957

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation, in the matter of South Western Produce Pty Ltd (in liq) v South Western Produce Pty Ltd [2006] FCA 957

IN THE MATTER OF SOUTH WESTERN PRODUCE PTY LTD (IN LIQUIDATION)

DEPUTY COMMISSIONER OF TAXATION v
SOUTH WESTERN PRODUCE PTY LTD (ACN 096 818 861)

NSD 2584 of 2005

LINDGREN J
24 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2584 OF 2005

IN THE MATTER OF SOUTH WESTERN PRODUCE PTY LTD (IN LIQUIDATION)

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION PLAINTIFF
AND:	SOUTH WESTERN PRODUCE PTY LTD (ACN 096 818 861) DEFENDANT
JUDGE:	LINDGREN J
DATE OF ORDER:	24 JULY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 482 of the Corporations Act 2001 (Cth) the winding up of South Western Produce Pty Ltd (In Liquidation) ACN 096 818 861 be terminated on this day, 24 July 2006.

THE COURT NOTES THAT:

2.There is no order for costs on the present application.

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 2584 OF 2005

IN THE MATTER OF SOUTH WESTERN PRODUCE PTY LTD (IN LIQUIDATION)

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION PLAINTIFF
AND:	SOUTH WESTERN PRODUCE PTY LTD (ACN 096 818 861) DEFENDANT
JUDGE:	LINDGREN J
DATE:	24 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By an interlocutory process filed on 13 July 2006, Andrew Perish, a contributory of the defendant, South Western Produce Pty Ltd (In Liquidation) (“the Company”), seeks an order that the winding up of the Company be terminated. Section 482 of the Corporations Act 2001 (Cth) (“the Act”) empowers the Court, at any time during the winding up of a company, to make such an order on application by, relevantly, a contributory.

2. The Company was ordered to be wound up on 23 June 2006 on the application of the plaintiff, the Deputy Commissioner of Taxation. There was no appearance for the Company on the hearing. Scott Pascoe of Sims Partners was appointed as liquidator. The application for the winding up was made under s 459P of the Act on the ground of insolvency, which was established by the Company’s failure to comply with a statutory demand for payment of a debt which it owed to the plaintiff. Apparently as at 8 June 2006 the total indebtedness was $85,945.71.

3. The Company’s business has been that of produce and pet supplies (wholesale and retail).  There are two ordinary shares on issue in the Company, one held by Andrew Perish and the other held by his brother Matthew Perish.  The two brothers are also the directors of the Company. I was informed from the bar table that Matthew Perish knows of the present application by his brother and consents to the making of an order terminating the winding up.   

4. In his affidavit in support of the present application, Andrew Perish says that he became aware of the winding up on or about 26 June when someone from Mr Pascoe’s office contacted him advising him of the fact.  He states that the winding up proceeding arose at a time when he was under extreme business pressure and was experiencing personal problems arising from his wife’s pregnancy, and was not giving his full and proper attention to the management of the Company’s affairs.  Mr Perish expresses the opinion in his affidavit that the Company runs a “viable and profitable business” and “has established a solid reputation within the local business community”.  He says that there has been extreme pressure from creditors concerned in connection with the supply of goods to the Company, who have been advised not to deal with the Company due to its being in liquidation.

5. There is also an affidavit of Peter Abrahams, chartered accountant, who has been the accountant for the Company for the last four years.  Annexed to his affidavit is a copy of the Company’s balance sheet as at 30 June 2006 showing net assets of $176,344.99.  Also annexed to Mr Abrahams’s affidavit is a list of the Company's trade creditors and other creditors as at 30 June 2006. 

6. Mr Abrahams states that as the Company’s external accountant he has had unfettered access to its financial and accounting records and has knowledge of its business and the manner in which it conducts its financial affairs.  He states:

   “In view of the capitalisation of loan accounts it is my opinion that the company runs a viable business with a proven ability to pay its debts as and when they become due and payable.”

   He further states that he is:

   “able to state, without qualification, that in my opinion the company is solvent and will continue to conduct a viable and profitable business if the winding up of the company is terminated by the court.”

7. The Commissioner has appeared on the present application and has now been paid out in full and consents to the making of an order under s 482. No other creditor supported the making of the winding up order, or has shown any interest in the matter since that order was made.

8. Mr Pascoe, the liquidator, has appeared and states that his fees have been paid in full and that he also raises no objection to the making of the order sought.

9. In the circumstances there will be an order under s 482.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             27 July 2006

Solicitor for the Contributory, Andrew Perish:	Mr D Bowles
Solicitor for the Plaintiff:	Mr C Stapley
Scott Pascoe, the liquidator of the defendant, appeared in person
Dates of Hearing:	21, 24 July 2006
Date of Judgment:	24 July 2006