Deputy Commissioner of Taxation v Complete Liquid Transport Pty Ltd

The Deputy Commissioner of Taxation sought to wind up Complete Liquid Transport Pty Ltd (the defendant) following the defendant’s failure to pay a statutory demand within the stipulated 21-day period. The defendant had paid the debt described in the statutory demand after the expiration of the 21-day period and outside a time subsequently agreed by the parties. The primary issues before the court were whether the plaintiff had adduced admissible evidence concerning the defendant’s additional indebtedness, whether such evidence substantiated the plaintiff’s claims, and if so, whether the plaintiff remained a creditor with standing to seek a winding-up order in light of the fact that the debt described in the statutory demand had been paid. The court found that the evidence provided by the plaintiff did not substantiate the plaintiff’s claims concerning the defendant’s additional indebtedness and that the plaintiff no longer remained a creditor with standing to seek a winding-up order. The plaintiff’s application was dismissed.

The court determined that the evidence tendered by the plaintiff was hearsay and thus inadmissible. The affidavit of Mr Broderick, a partner of Gadens Lawyers, included a statement that he had been informed by a Taxation Officer of the Australian Taxation Office 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. The court found that this constituted hearsay and was inadmissible as evidence of the defendant’s indebtedness to the plaintiff. The plaintiff also tendered affidavits sworn by Mr Peter Mackintosh, a Taxation Officer employed by the Australian Taxation Office. The court determined that the evidence contained in these affidavits did not substantiate the plaintiff’s claims concerning the defendant’s additional indebtedness. The court found that the plaintiff was not a creditor with standing to seek a winding-up order because the debt described in the statutory demand had been paid, and the plaintiff had not provided admissible evidence concerning the existence and amount of the defendant’s additional indebtedness. The court dismissed the plaintiff’s application.