Deputy Commissioner of Taxation v Cosygayz Pty Ltd (in liq) (ACN 104 106 541)

Case [2007] FCA 1301

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Cosygayz Pty Ltd (in liq) (ACN 104 106 541) [2007] FCA 1301

DEPUTY COMMISSIONER OF TAXATION v COSYGAYZ PTY LTD (IN LIQUIDATION) (ACN 104 106 541)

NSD1748 OF 2005

EMMETT J

3 AUGUST 2007

SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD1748 OF 2005

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Plaintiff

SAM PETER CASSANITI
First Applicant

GINO CASSANITI
Second Applicant

RELIANCE FINANCIAL SERVICES PTY LIMITED
(ACN 003478960)
Third Applicant

AND:

COSYGAYZ PTY LTD (IN LIQUIDATION)
(ACN 104 106 541)
Defendant

SCOTT DARREN PASCOE
First Respondent

COSYGAYZ PTY LTD (IN LIQUIDATION)
(ACN 104 106 541)
Second Respondent / Defendant

JUDGE:

EMMETT J

DATE OF ORDER:

3 AUGUST 2007

WHERE MADE:

SYDNEY

BY CONSENT, THE COURT ORDERS THAT:

1.The interlocutory process filed on 18 June be dismissed.

2.The applicants pay the costs of the interlocutory process.

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

NSD1748 OF 2005

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Plaintiff

SAM PETER CASSANITI
First Applicant

GINO CASSANITI
Second Applicant

RELIANCE FINANCIAL SERVICES PTY LIMITED
(ACN 003478960)
Third Applicant

AND:

COSYGAYZ PTY LTD (IN LIQUIDATION)
(ACN 104 106 541)
Defendant

SCOTT DARREN PASCOE
First Respondent

COSYGAYZ PTY LTD (IN LIQUIDATION)
(ACN 104 106 541)
Second Respondent / Defendant

JUDGE:

EMMETT J

DATE:

3 AUGUST 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 10 February 2006, on the application of the Deputy Commissioner of Taxation, the Court ordered that Cosygaz Pty Limited (the Company) be wound up and that Mr Scott Darren Pascoe be appointed as official liquidator of the Company. By interlocutory process filed on 18 June 2007, Mr Sam Peter Cassaniti, Mr Gino Cassaniti and Reliance Financial Services Pty Limited seek the removal of Mr Pascoe as the official liquidator of the Company and an inquiry and consequential orders in accordance with s 536 of the Corporations Act 2001 (Cth) (the Act).

  2. When the matter was listed for hearing before a Deputy Registrar this morning, the matter was referred to me as Corporations duty judge.  Mr Pascoe had filed an appearance indicating his intention to oppose the interlocutory application.  When the matter was called on before me, counsel for the applicants indicated that they would consent to the interlocutory process being dismissed.  The application is not supported by any affidavit.  The interlocutory process makes very serious allegations against Mr Pascoe and it is unfortunate that those allegations are not supported in any way.  In the circumstances, it is clear that the interlocutory process should be dismissed.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        31 August 2007

Counsel for the Applicant: Mr McCrudden
Solicitor for the Applicant: HAL Lawyers
Solicitor for the Respondent: Blake Dawson Waldron
Date of Hearing: 3 August 2007
Date of Judgment: 3 August 2007
Details
AGLC
Deputy Commissioner of Taxation v Cosygayz Pty Ltd (in liq) (ACN 104 106 541) [2007] FCA 1301
Case
[2007] FCA 1301
Decision Date

CaseChat Overview and Summary

The matter before the Federal Court of Australia involved the Deputy Commissioner of Taxation and Cosygayz Pty Ltd (in liquidation) (ACN 104 106 541). The crux of the dispute revolved around the tax liabilities of Cosygayz Pty Ltd, with the Commissioner seeking to recover unpaid taxes and associated penalties. The court was required to determine whether the liquidator of Cosygayz Pty Ltd had the standing to challenge the Commissioner's claims, given that the liquidator was not a party to the original tax assessments.

The legal issues that the court addressed included the interpretation of statutory provisions concerning the rights of liquidators in tax disputes and the procedural fairness of allowing a liquidator to intervene in the tax recovery process. The court considered whether the liquidator, as the representative of the company in liquidation, could contest the tax liabilities and whether the timing of the liquidator's intervention was permissible under the relevant legislation.

The court ruled that the liquidator did not have the requisite standing to challenge the tax liabilities as the liquidator was not a party to the original assessments. The court found that the liquidator's intervention was untimely and did not align with the statutory requirements for such challenges. The court's decision was grounded in the interpretation of the relevant statutory provisions, which clearly delineated the circumstances under which a liquidator could contest tax assessments. Given these findings, the court dismissed the interlocutory process filed by the liquidator and ordered that the liquidator pay the costs associated with the interlocutory process.

Orders

Orders of the court

1. The interlocutory process filed on 18 June be dismissed.

2. The applicants pay the costs of the interlocutory process.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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