Deputy Commissioner of Taxation v Markment Pty Ltd (in liq)

[2005] NSWSC 1123

CITATION:	Deputy Commissioner of Taxation v Markment Pty Ltd (in liq) [2005] NSWSC 1123
HEARING DATE(S):	31 October 2005
JUDGMENT DATE :	31 October 2005
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Adjournment of Interlocutory Process seeking termination of winding up refused. Interlocutory Process dismissed.

CATCHWORDS:	CORPORATIONS - winding up - termination of winding up - evidence usually required
PARTIES:	Deputy Commissioner of Taxation - Plaintiff Markment Pty Ltd (in liq) - Defendant Nabil Belramoul - Applicant
FILE NUMBER(S):	SC 6269/04
COUNSEL:	N Sadhu, solicitor - Plaintiff D McCrostie, solicitor - Liquidator J T Johnson - Applicant
SOLICITORS:	Australian Taxation Office Legal Services - Plaintiff TurksLegal - Liquidator Webster O'Halloran & Associates - Applicant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

CAMPBELL J

MONDAY 31 OCTOBER 2005

6269/04 DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v MARKMENT PTY LTD (IN LIQ)

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application for adjournment of an interlocutory process which seeks the termination of a winding up. The winding up order is one which was made on 24 February 2005. The Interlocutory Process was filed on 1 April 2005. It has been before the Registrar no fewer than eleven times and has been repeatedly stood over.

2 Today an application is made for it to be adjourned once again. The evidence shows that Mr Nabil Belramoul, a director of the company, is currently overseas seeking to raise finance to enable the creditors of the company to be paid out. There is no evidence of any substance which gives reason to believe that there is a likelihood that those efforts to obtain finance will be successful.

3 When the matter was before the Registrar on the last occasion, being 24 October 2005, an order was made that any further evidence be filed and served by 28 October 2005. That was after, on 10 October 2005, there had also been an order for the applicant to provide further affidavits by 21 October 2005, which had not been complied with.

4 It was only on 19 October 2005 that the last of the tax returns of the trust of which the company was a trustee was filed with the Australian Taxation Office, and only on 27 October 2005 that the last of the tax returns of the company itself was filed with the Commissioner.

5 The liquidator is in a situation where, apart from certain financial statements, the books and records of the company have not been delivered to him, and he has been shown no evidence that would indicate that the company is solvent. It appears that some time after 30 June 2004, in circumstances that have not been explained to the liquidator, there was a change of trustee of the assets which operated the restaurant business which had formerly been conducted by this company. The restaurant business is, it seems, continuing, but being run by someone other than the liquidator. The company in liquidation, however, is the holder of the lease of the premises from which the restaurant operates.

6 In the ordinary course, an applicant for termination of a winding up is expected to provide evidence from someone independent of the company to demonstrate that the company is solvent, to arrange for payment of, or releases from, all existing unsecured creditors, to ensure that, one way or another, any loans that were owing to persons connected with the shareholders do not remain liabilities of the company, and to pay the reasonable fees and outgoings of the petitioning creditor and the liquidator. As part of giving evidence that unsecured creditors are paid, the applicant is ordinarily expected to pay particular attention to the situation concerning the taxation obligations of the company. Apart from recognising that it would, at some indeterminate future time, be necessary to pay the fees of the liquidator, the evidence which has been filed goes nowhere near meeting these requirements.

7 It is preferable, in a situation where there is no reason to believe with any confidence that the necessary evidence will become available, and where there have been so many adjournments in the past, to bring the matter to an end. I therefore decline the adjournment application.

8 In those circumstances where, for the reasons I have just outlined, the evidence presently available in relation to the interlocutory process is not what is usually required, and there is no reason why the usual requirements ought not apply to this company, I dismiss the interlocutory process. I order the applicant to pay the costs of the respondents to the interlocutory process. I also direct that the dismissal of this interlocutory process is without prejudice to the bringing of another application seeking the same orders, provided that that evidence is supported by evidence of the general kind I have indicated as being usually necessary, or by evidence explaining why, in the circumstances of the particular case, it is not appropriate to expect evidence of that kind to be provided. Exhibits may be returned.

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