Deputy Commissioner of Taxation v Sunshine Kebabs Pty Ltd

[2008] FCA 211

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Sunshine Kebabs Pty Ltd [2008] FCA 211

INSOLVENCY – consideration of an application for an order that the defendant be wound up in insolvency under the provisions of the Corporations Act 2001 (Cth).

DEPUTY COMMISSIONER OF TAXATION v SUNSHINE KEBABS PTY LTD
ACN 101 750 378
QUD381 OF 2007

GREENWOOD J
29 FEBRUARY 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD381 OF 2007

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff
AND:	SUNSHINE KEBABS PTY LTD ACN 101 750 378 Defendant

JUDGE:	GREENWOOD J
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The Application of the Plaintiff filed on 10 August 2007 for an order that the Defendant be wound up in insolvency under the provisions of the Corporations Act 2001 (Cth) is adjourned to 12 March 2008.

2.The costs of the application are reserved.

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	QUD381 OF 2007

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff
AND:	SUNSHINE KEBABS PTY LTD ACN 101 750 378 Defendant

JUDGE:	GREENWOOD J
DATE:	29 FEBRUARY 2008
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. I have an application before me for winding up of the defendant Sunshine Kebabs Pty Ltd.  This morning an affidavit has been filed on information and belief by Stacey Heath, which deposes to some oral arrangements entered into by the principal of the defendant, Mr Murat Coskun, and another gentleman, the effect of which is that a 10 per cent interest in the company has been purchased by Mr Pezkan Cosgun, an incoming investor.  The effect of those arrangements is that $100,000 has been paid by way of deposit, and that sum has been paid by way of a trust account cheque to the plaintiff in the proceedings.  The balance purchase price for the 10 per cent interest, which has a value of $500,000, is to be paid within 14 days. 

2. The affidavit of Ms Heath does not exhibit any written confirmation of any of these oral arrangements.  However, I am satisfied that a special circumstance exists in the form of the intervention of these proposed arrangements.  However, because the arrangements are not documented, depend upon oral arrangements, and are otherwise largely undefined, I propose to adjourn the hearing of the application until 10.15 on 12 March, by which time I would expect to have before me an affidavit which deposes to a written agreement which evidences a legally binding obligation on the part of the purchaser to pay the balance of the purchase funds within 14 days of today, which would be of course 14 March 2008.

3. In reliance upon that material, I will then consider whether the matter ought to be adjourned for a further week to enable moneys to be paid and cleared.  If those events occur they will result in the total discharge of the plaintiff, who is the only creditor who has a debt which is currently due and payable.  However, I should emphasise that unless these arrangements are documented in a properly enforceable form and there is a serious prospect that the funds will be paid and cleared by 14 March 2008, then the real probability is that on 12 March 2008 I will make orders for winding up.  I’ll reserve the costs of the application until that date.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        29 February 2008

Solicitor for the Plaintiff:	Australian Taxation Office
Solicitor for the Defendant:	Tucker & Cowen
Date of Hearing:	29 February 2008
Date of Judgment:	29 February 2008