Deputy Commissioner of Taxation v Southross Pty Limited; Ex parte Drivas

[2008] FCA 1410

FEDERAL COURT OF AUSTRALIA

Southross Pty Limited, in the matter of;
Deputy Commissioner of Taxation v Southross Pty Limited; Ex parte Drivas
[2008] FCA 1410

SOUTHROSS PTY LIMITED (ACN 074 563 803), IN THE MATTER OF; DEPUTY COMMISSIONER OF TAXATION v SOUTHROSS PTY LIMITED (ACN 074 563 803); EX PARTE THEODORE DRIVAS

NSD 1040 OF 2008

JACOBSON J

4 SEPTEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1040 OF 2008

IN THE MATTER OF SOUTHROSS PTY LIMITED (ACN 074 563 803)

BETWEEN:

THEODORE DRIVAS
Applicant

DEPUTY COMMISSIONER OF TAXATION
Plaintiff

AND:

SOUTHROSS PTY LIMITED (ACN 074 563 803)
Defendant

JUDGE:	JACOBSON J
DATE OF ORDER:	4 SEPTEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The winding up of the Defendant be terminated pursuant to s 482 of the Corporations Act.

2.The Defendant pay the remuneration and disbursements (“the Liquidator Costs”) of John Lord (“the Liquidator”), in acting as the Liquidator of Defendant to be calculated at the hourly rates usually charged by the Liquidator, his partners and staff and fixed at an amount not exceeding $22,000.00.

3.The Liquidator may apply assets of the defendant held by him on the date of these orders in payment of the Liquidator Costs; and

4.The defendant pay the plaintiff’s costs of and incidental to the interlocutory process dated 3 September 2008 fixed in the amount of $800.00.

5.Leave be given to the Applicant to have these orders taken out immediately.

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	NSD 1040 OF 2008

IN THE MATTER OF SOUTHROSS PTY LIMITED (ACN 074 563 803)

BETWEEN:

THEODORE DRIVAS
Applicant

DEPUTY COMMISSIONER OF TAXATION
Plaintiff

AND:

SOUTHROSS PTY LIMITED (ACN 074 563 803)
Defendant

JUDGE:	JACOBSON J
DATE:	4 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 482 of the Corporations Act2001 (Cth) for an order terminating the winding up of the defendant company, Southross Pty Limited. The application is made by Mr Theodore Drivas who is a contributory of the company. A contributory is a person who may make an application in accordance with s 482(1A) of the Act.

2. I have read the affidavits in support of the application.  They consist of an affidavit of Mr Drivas sworn on 2 September 2008 and an affidavit of Mr Constantine Savell also sworn on 2 September 2008. 

3. Mr Savell is a partner in a firm of accountants.  Mr Savell’s firm is a registered tax agent and a member of the National Institute of Accountants. He is the company’s external accountant.  The effect of Mr Savell’s evidence is that the defendant will be able to pay all of its debts, as and when they become due, if the Court makes an order that the winding up of the company be terminated. 

4. I am satisfied upon the basis of the evidence of Mr Drivas that there is sufficient explanation for the company’s failure to respond to the statutory demand made by the Deputy Commissioner of Taxation and to the application to wind up the company. 

5. I am also satisfied on an examination of the material contained in Mr Savell’s affidavit that the company is or will be able to pay its debts, as and when they fall due, if the winding up order is made.  The evidence also establishes that the debt which was due to the Deputy Commissioner of Taxation, upon which the winding up order was founded, has been paid and that the liquidator’s costs and disbursements have also been paid. 

6. The order terminating the winding up is not opposed by the Deputy Commissioner of Taxation or by the liquidator.  Mr Crompton appeared for the Deputy Commissioner and for the liquidator in this afternoon’s application. 

7. I also granted leave to Ms Cosgrove to appear for Challenger Managed Investments Limited, a creditor of the company.  The company’s debt to Challenger is an amount in excess of $4 million and the debt is secured.  The evidence shows that the company has been meeting its instalments under the mortgage and is not in default.  Challenger does not oppose the making of an order terminating the winding up. 

8. The evidence also establishes that apart from the Deputy Commissioner of Taxation, there are only a very small number of outside creditors, and the cash flow statement which was in evidence establishes that the company will be able to meet those liabilities.

9. Accordingly, I am satisfied that it is appropriate to exercise my power under s 482 to order the termination of the winding up. The order terminating the winding up is to take effect immediately. I will make orders in accordance with the draft court order which I initial, date and place with the Court papers.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:
Dated:        3 October 2008

Solicitor for the Applicant:	Paul Bard Lawyers
Solicitor for the Plaintiff / Liquidator:	Church & Grace
Solicitor for the Creditor:	Deacons
Date of Hearing:	4 September 2008
Date of Judgment:	4 September 2008