Deputy Commissioner of Taxation v Complete Liquid Transport Pty Ltd
[2010] FCA 1067
FEDERAL COURT OF AUSTRALIA
Deputy Commissioner of Taxation v Complete Liquid Transport Pty Ltd [2010] FCA 1067
Citation: Deputy Commissioner of Taxation v Complete Liquid Transport Pty Ltd [2010] FCA 1067 Parties: DEPUTY COMMISSIONER OF TAXATION v COMPLETE LIQUID TRANSPORT PTY LTD (ACN 110 038 527) File number: QUD 224 of 2010 Judge: COLLIER J Date of judgment: 29 September 2010 Catchwords: CORPORATIONS – application for winding up of the defendant corporation pursuant to s 459P Corporations Act 2001 (Cth) on the ground of insolvency – plaintiff served statutory demand upon defendant – statutory demand not complied with by defendant – debt described in statutory demand paid outside period subsequently agreed by parties – whether admissible evidence before the Court as to existence and amount of additional unpaid debts – whether evidence substantiates additional unpaid debts and amount of debts – whether plaintiff continues to have standing to seek winding up of defendant – whether Court should exercise its discretion to wind up defendant
Held: the defendant be wound up in insolvency
Legislation: Corporations Act 2001 (Cth) Pt 5.4, ss 95A, 459A s 459C, 459E, 459F, 459P, 467
Evidence Act 1995 (Cth) ss 59, 155A
Superannuation Guarantee (Administration) Act 1992 (Cth)
Taxation Administration Act 1953 (Cth) Sch 1 ss 250-10, 255-45, 255-50, 255-55
Explanatory Memorandum A New Tax System (Tax Administration) Bill 1999Cases cited: Barkworth Olives Management Ltd v Deputy Commissioner of Taxation [2010] QCA 80 cited
Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 54 ACSR 228 cited
Brady v Thornton (1947) 75 CLR 140 cited
De Montford v Southern Cross Exploration NL (1987) 17 NSWLR 468 cited
Deputy Commissioner of Taxation v BK Ganter Holdings Pty Ltd (2008) 172 FCR 385 cited
Deputy Commissioner of Taxation v Falzon [2008] QCA 327 cited
Deputy Commissioner of Taxation v Guy Holdings Pty Ltd (1994) 14 ACSR 580 distinguished
Deputy Commissioner of Taxation of Australia v Lewer [2001] VSC 114 cited
Deputy Commissioner of Taxation v Visidet Pty Ltd [2005] FCA 830 cited
Motor Terms Company Pty Ltd v Liberty Insurance Ltd (in liquidation) (1967) 116 CLR 177 cited
Penrith City Council v Owston Nominees No 2 Pty Ltd [2001] WASC 249 cited
Re Koscot Interplanetary (UK) Ltd [1972] 3 All ER 829 cited
Re New World Alliance Pty Ltd (receiver and manager appointed) (1994) 51 FCR 425 cited
Re William Hockley Ltd [1962] 1 WLR 555 citedDate of hearing: 13 August 2010 Date of last submissions: 20 August 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 39 Solicitor for the Plaintiff: Mr MJ Broderick of Gadens Lawyers Solicitor for the Defendant: Mr MJ Cope of McKays Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 224 of 2010
BETWEEN: DEPUTY COMMISSIONER OF TAXATION
PlaintiffAND: COMPLETE LIQUID TRANSPORT PTY LTD (ACN 110 038 527)
Defendant
JUDGE:
COLLIER J
DATE OF ORDER:
29 SEPTEMBER 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The defendant Complete Liquid Transport Pty Ltd ACN 110 038 527 be wound up in insolvency under the provisions of the Corporations Act 2001 (Cth).
2.Andrew Peter Fielding of BDO, Level 18, 300 Queen Street Brisbane Queensland, an official liquidator, be appointed liquidator of the defendant.
3.The costs of the plaintiff including all reserved costs to be taxed if not otherwise agreed and be paid out of the assets of the defendant.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 224 of 2010
BETWEEN: DEPUTY COMMISSIONER OF TAXATION
PlaintiffAND: COMPLETE LIQUID TRANSPORT PTY LTD (ACN 110 038 527)
Defendant
JUDGE:
COLLIER J
DATE:
29 SEPTEMBER 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application made pursuant to s 459P of the Corporations Act 2001 (Cth) (Corporations Act) for the winding up of the defendant corporation on the ground of insolvency. It has come before me on referral from the Registrar.
The plaintiff, the Deputy Commission of Taxation, served a statutory demand upon the defendant pursuant to s 459E of the Corporations Act. The defendant has paid the debt described in the statutory demand but after the expiration of the 21 day period contemplated by s 459E and s 459F of the Corporations Act, and outside a time subsequently agreed by the parties. The plaintiff claims that the defendant continues to owe significant other taxation debts which remain unpaid, and presses its application for winding up. The key issues for decision in this case are:
·whether admissible evidence is before the Court as to the existence and amount of additional taxation debts owing to the plaintiff which remain unpaid;
·if the evidence is admissible – whether it substantiates the plaintiff’s claim concerning the defendant’s additional indebtedness;
·whether, in light of the fact that the debt described in the statutory demand has been paid, the plaintiff continues to be a creditor with standing to seek an order that the defendant be wound up in insolvency;
·if the Court forms a view favourable to the plaintiff in respect of the previous three issues – whether an order should be made that the defendant be wound up.
Background
The primary background facts to this application are not in dispute.
The plaintiff served a statutory demand in the amount of $39,106.97 on the defendant by post on 25 February 2010. The amount was not paid during the period of 21 days following 25 February 2010. The parties engaged in negotiations in relation to payment of the relevant debt. A winding up application filed by the plaintiff on 11 June 2010 was listed for hearing before a Registrar on several dates, and subsequently adjourned in light of the ongoing negotiations.
An offer was made on 6 July 2010 by the plaintiff for the defendant company to pay the sum of $20,000 on or before 8 July 2010, to confirm in writing that it would pay the balance of the sum of $19,106.97 by 20 July, to provide proof that the full debt owing ($144,000) could be paid, and to provide proof of its solvency. The payment of these sums on the specified dates in the offer was accepted by Mr Gary Tweddle, a director of the defendant, in a letter dated 7 July 2010. It appears from the same letter that the defendant also accepted the other requirements of the plaintiff in relation to provision of proof that the full debt could be paid and as to its solvency. In that letter the defendant also made a counter-offer to pay off “the additional outstanding debt” in instalments of $1000 per month was made by the defendant at that time, which was not accepted by the plaintiff.
The amount of the debt described in the statutory demand ($39,106.97) was paid by the defendant on 22 July 2010. However, under the arrangement with the defendant whereby the sum was to be paid by 20 July 2010, the payment was two days late.
It is not in dispute that the defendant failed to comply with the plaintiff’s statutory demand. This gives rise to a presumption of insolvency in the defendant: s 459C(2).
Notwithstanding that the debt described in the statutory demand was subsequently paid, the plaintiff contends that the defendant owes the plaintiff the further sum of $101,937 in respect of superannuation guarantee debts. The plaintiff also claims that the defendant has not provided proof that the full tax debt could be paid, and that the defendant has not provided proof of its solvency.
1. Is there admissible evidence before the Court as to the existence and amount of the additional taxation debts which remain unpaid?
Evidence tendered by the plaintiff as to the continued existence and amount of taxation debts in the amount of $101,937 owing by the defendant was as follows:
·an affidavit of Matthew Broderick sworn 12 August 2010;
·an affidavit of Peter Mackintosh sworn 13 August 2010;
·a further affidavit of Peter Mackintosh sworn 13 August 2010.
Mr Broderick is a partner of Gadens Lawyers, and has conduct of the application on behalf of the plaintiff. In his affidavit Mr Broderick deposed in para 7 that he was informed by Amanda Walker of the Australian Taxation Office in an email dated 5 August 2010, and believed the email to be true, that the defendant’s debt to the plaintiff was $101,937.38 as at 5 August 2010 taking into account the payments of the amount in the plaintiff’s statutory demand, and that there was no record of any objections being lodged by the defendant concerning this indebtedness. Mr Broderick also annexed as exhibit “MJB-3” a copy of an email dated 8 July 2010 from the defendant to Mr Sam Whitehill of Gadens Lawyers attaching a copy of the 2008 financials of the defendant.
At the hearing Mr Cope for the defendant objected to para 7 of Mr Broderick’s affidavit on the basis that it was hearsay. Mr Cope took no objection to the exhibits annexed to Mr Broderick’s affidavit in that they constituted correspondence between the parties.
At the time I reserved my ruling as to the admissibility of para 7 of Mr Broderick’s affidavit. Now, however, I find that this paragraph is hearsay. As Zeeman J observed in Deputy Commissioner of Taxation v Guy Holdings Pty Ltd (1994) 14 ACSR 580 the existence of indebtedness not identified in the statutory demand must be proved by admissible evidence in the usual way. There does not appear to be any open licence to admit hearsay evidence generally in winding up applications: Re Koscot Interplanetary (UK) Ltd [1972] 3 All ER 829 at 833. Paragraph 7 of Mr Broderick’s affidavit is inadmissible as evidence of indebtedness of the defendant to the plaintiff: s 59 of the Evidence Act 1995 (Cth). Indeed, I note that in supplementary submissions filed on behalf of the plaintiff, the plaintiff concedes this point.
In anticipation that I might so rule, however, the plaintiff also tendered affidavits sworn by Mr Peter Mackintosh. In his first affidavit sworn 13 August 2010, Mr Mackintosh deposed that he was a Taxation Officer employed by the Australian Taxation Office and, subject to the direction of the plaintiff, had conduct of this matter on the plaintiff’s behalf. He deposed further as follows:
2. In the Australian Taxation Office the Plaintiff maintains a computer system, in which are recorded tax liabilities that are due and payable by individual and corporate taxpayers to the Commonwealth, payable to the Commissioner of Taxation, and recoverable by a Deputy Commissioner of Taxation. The system also records any payments made by a taxpayer and any other amounts applied to the credit of that taxpayer. The system is updated daily.
3. On 13 August 2010, I searched the systems record current on that date in relation to the Defendant. As at today’s date, the records show that the following tax liability remains owing by the Defendant to the Plaintiff:
(a) $7,280.87 being unpaid Running Balance Account deficit debt; and
(b) $114,191.44 being unpaid Superannuation Guarantee Charges and related interest and penalties for the period 1 March 2005 to 30 June 2008.
4. All the facts and circumstances deposed to are within my own knowledge save such as are deposed to from information only and the source of information appears on this the face of my affidavit.
Annexed to his second affidavit sworn 13 August 2010 was a document Mr Mackintosh deposed was a copy of a statement of account obtained from the systems maintained by the Australian Taxation Office on 17 May 2010, showing the superannuation guarantee debt and other related taxation liabilities of the defendant as at that date at $111,638.55, and also showing accrued obligations of superannuation.
Mr Cope for the defendant submitted that both affidavits of Mr Mackintosh were inadmissible on the basis that neither constituted admissible evidence as to the process required under the superannuation guarantee legislation to create a debt, for example copies of notices of assessment, and that printouts from the accounting system of the Australian Taxation Office – which appeared to have been annexed to the second affidavit of Mr Mackintosh – were inadequate to constitute evidence of the defendant’s alleged indebtedness. In so submitting Mr Cope relied on comments of Zeeman J in Guy Holdings as follows:
(582) The relevant statements made by the deponents are conclusions drawn by those deponents from facts, presumably known to them, but which have not (583) been put in evidence. It is not for a witness to draw such conclusions. They are conclusions which are for the court to draw upon the basis of admissible evidence. Unless there is evidence of facts on the basis of which it is open to me to find that the respondent remains indebted to the Commonwealth I cannot find that the respondent is so indebted.
In my view however, the affidavits sworn by Mr Mackintosh are admissible evidence as to the indebtedness of the defendant to the plaintiff. I form this view for the following three reasons.
First, while there is a possibility that, read in isolation, the evidence contained in Mr Mackintosh’s first affidavit could be construed as “conclusions drawn by (him) from facts, presumably known to (him), but which have not been put in evidence”, I accept Mr Broderick’s submission that the evidence in Mr Mackintosh’s second affidavit goes considerably beyond mere conclusions drawn by a witness and, read with the first affidavit, constitutes tangible evidence of indebtedness of the defendant to the plaintiff.
Second, as I observed to Mr Cope during argument, the material in Mr Mackintosh’s affidavits was considerably more detailed than that in the affidavit accompanying the statutory demand, and to which no exception has been taken at any stage.
Third, I accept the submission of the plaintiff that there is sufficient evidence in the affidavits of Mr Mackintosh of the systems in place in the Australian Taxation Office and the means by which the defendant’s debts arose. To that extent I consider that s 155A of the Evidence Act applies to render Mr Mackintosh’s affidavits admissible as to the existence and amount of the defendant’s indebtedness to the plaintiff.
Following the hearing, supplementary written submissions were filed by the solicitors for the plaintiff contending that, in any event, effect is given to the evidence of Mr Mackintosh by s 255-50 and s 255-55 of Sch 1 of the Taxation Administration Act 1953 (Cth) (Sch 1 TA Act). It is appropriate to briefly examine this argument in light of the detailed submissions made by the plaintiff.
In summary, the argument of the plaintiff was as follows:
·Section 255-55 Sch 1 TA Act provides that in a proceeding to recover an amount of a tax-related liability, a person may give evidence by affidavit (cf Deputy Commissioner of Taxation of Australia v Lewer [2001] VSC 114).
·A winding up proceeding is a recovery proceeding within the meaning of s 255-50 and s 255-55 Sch 1 TA Act.
·“Tax-related liability” is defined in s 250-10 Sch 1 TA Act as including superannuation contributions charge and additional superannuation guarantee charge under the Superannuation Guarantee (Administration) Act 1992 (Cth) (subpara 60 and subpara 65 under the table to s 250-10(2) Sch 1 TA Act). The indebtedness of the defendant is such a tax-related liability.
·In this case no certificate was provided pursuant to s 255-45 Sch 1 TA Act. However the affidavit of Mr Mackintosh is given effect by s 255-50 Sch 1 TA Act which provides that in a proceeding to recover an amount of a tax related liability, a statement or averment about a matter in the plaintiff's complaint, claim or declaration is prima facie evidence of the matter.
In conclusion, the plaintiff submits therefore that the provisions in s 255-50 Sch 1 TA Act overcome any concerns of the defendant as identified in Guy Holdings.
The weakness in this chain of argument in relation to the evidence of Mr Mackintosh is that his evidence does not constitute “a statement or averment about a matter in the plaintiff’s complaint, claim or declaration” as provided in s 255-50 Sch 1 TA Act. As is made plain by the authorities where s 255-50 Sch 1 TA Act has been considered, reference to such statement or averment is a reference to statements or averments in the originating process including a statement of claim: Deputy Commissioner of Taxation v Falzon [2008] QCA 327 at [27], Barkworth Olives Management Ltd v Deputy Commissioner of Taxation [2010] QCA 80 at [11] (and cf observations of the High Court in Brady v Thornton (1947) 75 CLR 140). “Statement or averment” does not mean, for example, statements in affidavits, or witness statements. The originating process in these proceedings, namely that filed on 11 June 2010, makes reference only to the debt of $39,106.97 identified in the statutory demand, not the additional indebtedness claimed by the plaintiff relevant to the application currently before me. Further, while the Explanatory Memorandum to the legislation introducing s 255-50 Sch 1 TA Act (Explanatory Memorandum A New Tax System (Tax Administration) Bill 1999) notes that the provisions would continue to provide administratively convenient methods of presenting evidence to a court (para 2.31), it appears that only a certificate signed by the Commissioner, a Second Commissioner or a Deputy Commissioner pursuant to s 255-45 Sch 1 TA Act is prima facie evidence of the matter or matters in a proceeding to recover an amount of a tax related liability. There is no evidence before me that Mr Mackintosh is the Commissioner, a Second Commissioner or a Deputy Commissioner. Accordingly, while Mr Mackintosh’s evidence was always potentially admissible because it is in affidavit form (s 255-55 Sch 1 TA Act), his affidavits are not prima facie evidence of the material to which he deposes. More than, for example, a mere statement of the defendant’s indebtedness by Mr Mackintosh was required before his evidence would be admissible as to the existence and amount of that indebtedness, in accordance with principles articulated in Guy Holdings. On the facts as I have already found however, the evidence of Mr Mackintosh is admissible.
2. Has the plaintiff proven the existence of additional indebtedness by the defendant?
In light of the affidavit evidence of Mr Mackintosh I am satisfied that the plaintiff has established the continuing indebtedness of the defendant to the plaintiff in respect of the sum of $101,937. This finding is supported by Mr Gary Tweddle’s letter of 7 July 2010 to Gadens Lawyers on behalf of the plaintiff (annexed as MJB-2 to the affidavit of Mr Broderick) in which Mr Tweddle accepts that there is an additional outstanding debt in relation to the superannuation guarantee charge (although Mr Tweddle indicates uncertainty as to the size of the debt).
Evidence produced by the defendant in relation to this issue was limited to an affidavit by Mr Douglas Skelton, solicitor acting for the defendant, to the effect that he had been instructed by a director of the defendant that the defendant disputes the amount allegedly owed to the plaintiff by the defendant in respect of the superannuation guarantee levy (affidavit of Douglas Skelton sworn 13 August 2010). This evidence is hearsay and in my view inadmissible for the same reasons I have already given in relation to para 7 of Mr Broderick’s affidavit.
3. Does the plaintiff continue to have standing to seek winding up of the defendant?
Part 5.4 of the Corporations Act creates a legislative scheme whereby corporations may be wound up in insolvency. So far as is relevant for the purposes of these proceedings:
·Section 459A states that on an application under s 459P, the Court may order that an insolvent company be wound up in insolvency.
·Section 459P lists the parties who may apply for a corporation to be so wound up, including creditors (s 459P(1)(b)).
·Section 459C lists presumptions to be made in winding up proceedings, including that the Court must presume that a company is insolvent if, during or after the three months ending on the day when winding up application is made, the company failed to comply with a statutory demand.
·Section 459E prescribes the legislative machinery for service of a statutory demand.
·Section 467(1) provides inter alia that the Court may, on hearing an application for a corporation to be wound up in insolvency, make any interim or other order that it thinks fit.
As I have already observed, there is no dispute that the defendant failed to comply with the plaintiff’s statutory demand, thus giving rise to a presumption of insolvency (s 459C(2)).
The debt identified in the plaintiff’s statutory demand has been paid by the defendant. On the evidence that the defendant remains indebted to the plaintiff in respect of an identified amount, does the plaintiff continue to have standing to press for a winding up order?
The authorities are clear that the status of an applicant to seek a winding up order is determined as at the time when the application was filed, and is unaffected by the subsequent payment of the debt identified in the statutory demand to the creditor: Guy Holdings at 584, Deputy Commissioner of Taxation v Visidet Pty Ltd [2005] FCA 830 at [6], Menzies J in Motor Terms Company Pty Ltd v Liberty Insurance Ltd (in liquidation) (1967) 116 CLR 177 at 194, Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 54 ACSR 228 at 232, Re William Hockley Ltd [1962] 1 WLR 555, Penrith City Council v Owston Nominees No 2 Pty Ltd [2001] WASC 249 at [3], Deputy Commissioner of Taxation v BK Ganter Holdings Pty Ltd (2008) 172 FCR 385 at [21]. The plaintiff therefore retains standing to press for a winding up order, in relation to the defendant.
Section 459A provides that on an application under s 459P, the Court may order that an insolvent company be wound up in insolvency. The Corporations Act confers discretion on the Court on hearing of a winding up application to, in summary, dismiss the application, adjourn the hearing or make any interim or other order that it thinks fit: s 467. The question remaining is whether the Court should exercise its discretion to make an order that the defendant be wound up in insolvency.
4. Should the Court order that the defendant be wound up?
In respect of this issue the leading case appears to be the decision of Zeeman J in Guy Holdings. The facts in Guy Holdings are very similar to those before me. In that case however his Honour was not satisfied that the evidence tendered by the Commonwealth was admissible or that there was any evidence before the Court as to the actual financial position of the defendant company, and accordingly his Honour was not satisfied that the corporation was indebted to the Commonwealth. Importantly for consideration of the question whether the defendant ought to be subject to a winding up order however, his Honour then found:
·He was required by s 459C(2) to presume that the defendant corporation was insolvent. The presumption that the defendant corporation was insolvent did not require the application for a winding up order to be granted however, because s 459A Corporations Act authorises but does not mandate a winding up order.
·As the relief sought by the plaintiff was discretionary there must be established some matter which makes it appropriate that the discretion be exercised in favour of granting that remedy before it is appropriate to grant it.
·An analogy could be drawn between the facts of Guy Holdings (where it had not been established that the defendant corporation owed anything to the plaintiff or any other creditor) and those in De Montford v Southern Cross Exploration NL (1987) 17 NSWLR 468 where the Court had refused a winding up order in circumstances where none of the other alleged debts were actually payable.
In light of these considerations Zeeman J dismissed the application for a winding up order in respect of the defendant corporation in that case.
The plaintiff has submitted that the defendant is unable to pay its tax, failed to comply with a statutory demand, is insolvent and should be wound up. At the hearing Mr Broderick took me to correspondence between the parties including:
·An email from Mr Sam Whitehill of Gadens for the plaintiff to the defendant dated 6 July 2010 in which Mr Whitehill on behalf of the plaintiff stated that the plaintiff would only consider the adjournment of the winding up application against the defendant (then listed to be heard on 9 July 2010) if the defendant, inter alia, provided proof as to its solvency including a list of creditors, current balance sheets and/or profit and loss statements;
·2008 financial information provided by the defendant to the plaintiff on 8 July 2010, which established that:
ofrom the profit and loss statement for the year ended 30 June 2008 – the defendant had accumulated losses of $795,626.14 compared with accumulated losses at 30 June 2007 of $106,164.51;
ofrom the balance sheet for the year ended 30 June 2008 – the defendant had an excess of liabilities over assets for the 2008 financial year of $795,616.14, with superannuation payable of $47,941.17 treated as a current liability.
It is also not in dispute that no further or updated financial information other than that referable to the financial year ending 30 June 2008 was provided by the defendant to the plaintiff or otherwise made available to the Court.
The submissions of the defendant, both written and oral, were in summary that:
·the evidence produced by the plaintiff was inadmissible;
·the defendant had disputed the superannuation guarantee debt;
·despite the poor state of the defendant’s 2008 balance sheet, the balance sheet also demonstrated that the company had net assets worth $326,000 which it might be able to dispose of if required;
·as was clear from the decisions in Guy Holdings and Visidet it is necessary that, in light of the adverse consequences to a company of a winding up order, the creditor must demonstrate some good reasons for such an order to be made.
In the circumstances of this case I am satisfied that the defendant should be wound up. In contrast to the facts before his Honour in Guy Holdings, I am satisfied on the evidence before me that not only is the defendant indebted to the plaintiff in the additional amounts claimed by the plaintiff, but that on the limited material before the Court the defendant is insolvent (in the sense contemplated by s 95A Corporations Act) of being unable to pay its debts as and when they become due and payable. It is clear from such material as is before the Court that the financial position of the defendant is characterised by a serious deficiency of shareholder equity, significant indebtedness and a serious deficiency of assets compared with liabilities. The failure of the defendant to provide more current financial information as it agreed to do in an email on 8 July 2010 (annexure MJB-3) is also, in my view, telling.
I am not persuaded that the apparent existence of valuable net assets on the balance sheet of the defendant is indicative of its potential ability to pay its debts as submitted by Mr Cope. There is no tangible information before the Court as to the nature of the defendant’s assets. The nature of those assets may be such that they are not easily realisable and accordingly of little real value in maintaining the defendant’s ongoing financial viability (cf observations of Gummow J in Re New World Alliance Pty Ltd (receiver and manager appointed) (1994) 51 FCR 425 at [37]-[38]).
I am also not persuaded by the defendant’s apparent dispute of the superannuation guarantee debt claimed by the plaintiff. The extent of this “dispute” appears to be hearsay evidence by the solicitor for the defendant, which evidence I have ruled inadmissible, and statements of Mr Tweddle in his letter of 7 July 2010 amounting to little more than vague speculation as to the size of the debt. No sworn evidence as to the nature of any dispute by the defendant is before the Court. As Mr Broderick for the plaintiff submitted, anyone can dispute a debt. I give no weight to the defendant’s contentions disputing the amount of its indebtedness to the plaintiff.
Accordingly, it is appropriate that a winding up order be made in respect of the defendant.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 29 September 2010
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