Deputy Commissioner of Taxation v Direct Construction Pty Ltd

[2009] FCA 1173

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Direct Construction Pty Ltd
ACN 115 295 577 [2009] FCA 1173

DEPUTY COMMISSIONER OF TAXATION v DIRECT CONSTRUCTION PTY LTD ACN 115 295 577

QUD 120 of 2009

DOWSETT J
26 JUNE 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 120 of 2009

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff
AND:	DIRECT CONSTRUCTION PTY LTD ACN 115 295 577 Defendant

JUDGE:	DOWSETT J
DATE OF ORDER:	26 JUNE 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Direct Construction Pty Ltd ACN 115 295 577 be wound up in insolvency under the provisions of the Corporations Act 2001 (Cth).

2.Andrew Fielding, an official liquidator, be appointed liquidator of the company.

3.The plaintiff’s costs be fixed in the sum of $1,137.97 and reimbursed in accordance with s 466(2) of the Corporations Act 2001 (Cth).

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 120 of 2009

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff
AND:	DIRECT CONSTRUCTION PTY LTD ACN 115 295 577 Defendant

JUDGE:	DOWSETT J
DATE:	26 JUNE 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The plaintiff seeks to wind up the defendant on the ground of insolvency, relying on a statutory demand which was dated 1 April 2009.  The time for compliance expired 21 days thereafter.  There is no suggestion but that the plaintiff is entitled to an order on the material.  The defendant seeks an adjournment of the proceedings upon the basis that it may, at some time in the relatively near future, be able to pay the debt.  The original debt, which is a tax liability, was in the amount of $185,087.97.  The amount now owing is $226,233.04, plus legal costs and disbursements. 

2. The defendant asserts that another company, Corymbia Corporation Pty Ltd, is seeking to refinance its operations and is negotiating with an overseas bank for that purpose.  It proposes to borrow a very substantial amount of money and says that part of the arrangements for settlement of the loan will involve payment of the plaintiff’s debt.  It is said that if finance is not available from that source, Mr Quinlivan, who is a director of Corymbia and also of a company called Croftworth Corporation Pty Ltd, will direct Croftworth to pay the debt.  It is not asserted that Croftworth is presently able to pay, but it is expected that it will realise significant cash receipts over the next few weeks, thus enabling it to do so.  No further details are provided as to the way in which that will occur. 

3. Quite apart from anything else, it seems to me that the time for these proposals has long since passed.  It is no answer to these proceedings to appear on the hearing date and make such a proposal.  In any event, it is too uncertain for any significant weight to be placed upon it.  In those circumstances, I decline the application for an adjournment and proceed to hear this substantive application. 

4. There will be an order in terms of the draft.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       15 October 2009

Solicitor for the Plaintiff:	Mr S Jury of Australian Taxation Office
Solicitor for the Defendant:	Mr AE Wynn of Robinson & Robinson Lawyers

Date of Hearing:	26 June 2009
Date of Judgment:	26 June 2009