Deputy Commissioner of Taxation v Cyrene Group Pty Ltd ACN 056 897 306

[2008] FCA 829

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Cyrene Group Pty Ltd ACN 056 897 306 [2008] FCA 829

DEPUTY COMMISSIONER OF TAXATION v CYRENE GROUP PTY LTD ACN 056 897 306

QUD 419 OF 2007

DOWSETT J
28 APRIL 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 419 OF 2007

BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Plaintiff

AND: CYRENE GROUP PTY LTD ACN 056 897 306
Defendant

JUDGE:	DOWSETT J
DATE OF ORDER:	28 APRIL 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application for adjournment be refused.

2.Cyrene Group Pty Ltd ACN 056 897 306 be wound up in insolvency under the provisions of the Corporations Act 2001 (Cth).

3.Andrew Fielding be appointed as Liquidator for the purposes of the said winding up.

4.The plaintiff’s costs of the application, fixed in the sum of $1,199.40, be reimbursed as a priority out of the funds in the liquidation.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 419 OF 2007

BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Plaintiff

AND: CYRENE GROUP PTY LTD ACN 056 897 306
Defendant

JUDGE:	DOWSETT J
DATE:	28 APRIL 2008
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application for the winding up of Cyrene Group Pty Ltd, the Deputy Commissioner of Taxation being the plaintiff.  The application is made upon the ground of non-compliance with a statutory demand.

2. The matter has been listed on previous occasions and adjourned, although the circumstances of such adjournment are not directly in evidence before me today.  A substantial part of the history of the matter can be inferred from the affidavit of Ronald Douglas Christie, filed on 24 April 2008.  That affidavit deposes to efforts made by him to effect the sale of various properties owned by a company called Grangewell and one property owned by his wife.  A number of contracts are said to be on foot.  He and his wife are directors of the defendant company.  The thrust of the affidavit is that these contracts will produce a cash surplus of $782,883.99 which would be available to meet the plaintiff’s claim, (slightly over $400,000) leaving a surplus of $382,000.

3. I heard the matter last Thursday.  The defendant sought a further adjournment pending realization of these properties.  Significant criticisms were made of the defendant’s material, in particular, its failure to disclose a winding up petition outstanding against Grangewell, and that Newnham, the plaintiff in those proceedings, has security over one of the properties which is to be sold pursuant to the arrangements outlined in Mr Christie’s affidavit.  That debt is in excess of $446,000.  The charge was said to be by way of equitable mortgage.  The evidence now demonstrates that the equitable mortgage has been replaced by registered mortgages over three of the other properties which are subject to contracts of sale, or allegedly so.  The debt appears to have been, as at February this year, $446,240.68, plus interest and costs.  Obviously, if that were taken away from $782,000, the remaining amount would be insufficient to pay the Commissioner. 

4. The plaintiff also points out that no contract of sale has been produced concerning one property said to have been sold.  In a number of other contracts, the dates for settlement have passed without extension.  In a number of contracts, no deposit has been paid.  These are all matters of concern. 

5. Of most importance, however, is the fact that the debt of $446,000 owed to Newnham was not disclosed.  Taking account of that debt, and assuming that the amounts claimed as likely to be realised from the contracts of sale are realized, there would be insufficient funds to pay the plaintiff.  In those circumstances, there is no proper basis upon which these proceedings should be adjourned.

6. I refuse the application for an adjournment.  There will be an order in terms of the draft.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:
Dated:        5 June 2008

Solicitor for the Plaintiff:	Legal Services Branch, Australian Taxation Office
Solicitor for the Defendant:	ERA Legal

Date of Hearing:	28 April 2008
Date of Judgment:	28 April 2008