Deputy Commissioner of Taxation v T.D. Preece Pty Ltd (No 2)

[2013] FCA 1421

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v T.D. Preece Pty Ltd (No 2)
[2013] FCA 1421

Citation:	Deputy Commissioner of Taxation v T.D. Preece Pty Ltd (No 2) [2013] FCA 1421
Parties:	DEPUTY COMMISSIONER OF TAXATION v T.D. PREECE PTY LTD ACN 149 377 800
File number:	NSD 1181 of 2013
Judge:	GRIFFITHS J
Date of judgment:	20 December 2013
Catchwords:	CORPORATIONS – winding up of a company in insolvency – orders giving effect to judgment in Deputy Commissioner of Taxation v T.D. Preece Pty Ltd [2013] FCA 1365
Date of hearing:	Heard on the papers
Date of last submissions:	19 December 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	4
Counsel for the Plaintiff:	Mr K Metlej (solicitor)
Solicitor for the Plaintiff:	Craddock Murray Neumann Lawyers
Counsel for the Defendant:	Mr M Maconachie
Solicitor for the Defendant:	Zeina Touma

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1181 of 2013

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff
AND:	T.D. PREECE PTY LTD ACN 149 377 800 Defendant

JUDGE:	GRIFFITHS J
DATE OF ORDER:	20 DECEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The defendant pay to the plaintiff (by Electronic Funds Transfer) the following amounts:

(a)within 120 days following judgment being delivered in Supreme Court Proceedings No. 277747 of 2008 between Aletta Sutton and Glenn Preece, the outstanding balance of the amount of $156,617.53 (being the amount payable to the Plaintiff in respect of the Creditor’s Statutory Demand for Payment of Debt dated 6 March 2013 plus any General Interest Charges thereon from 6 March 2013 to the date on which final payment is made to the plaintiff – hereinafter referred to in these orders as the “Statutory Demand Amount”);

(b)until payment in full is made in accordance with Order 1(a):

(i)$45,000 on or before 4:00 pm on or before 3 January 2014;

(ii)subject to Order 1(b)(iii) below, consecutive monthly instalments of at least $6,500 each, the first instalment to be paid by 4:00 pm on 3 February 2014, and subsequent instalments to be paid by 4:00 pm on the 3^rd day of each consecutive month, with such instalments to continue until such time as they have been reduced to less than $6,500.

(iii)if the Statutory Demand Amount has been reduced to less than $6,500, the balance of the Statutory Demand Amount shall be paid by the 3^rd day of the month following the month in which the last instalment was paid under Order 1(b)(ii) above.

2.By no later than 4:00 pm on 14 February 2014, the defendant is to lodge with the plaintiff all Business Activity Statements and Instalment Activity Statements which are outstanding as at the date of these Orders.

3.The defendant is to pay the plaintiff’s costs fixed in the amount of $12,245.80 by 4:00 pm on 3 February 2014.

4.If the defendant fails to comply with any of Orders 1 to 3:

(a)       T.D. Preece Pty Ltd be wound up;

(b)Steven Nicols of Nicols & Brien Business Recovery is appointed the liquidator of the defendant corporation;

(c)the plaintiff’s costs of these proceedings be fixed in the amount of $12,245.80,

with effect from the date of the first non-compliance with Orders 1 to 3. 

5.The parties, and Steven Nicols, have liberty to apply in relation to the implementation of these orders.

AND THE COURT NOTES THAT:

6.General Interest Charge will continue to accrue in accordance with the relevant statutes on outstanding amounts payable by the defendant to the plaintiff, including the balance of the Statutory Demand Amount, payable from time to time and is in no way affected by these Orders.

7.Notwithstanding these Orders, the defendant’s taxation liabilities remain immediately due and payable and nothing in these Orders imposes an obligation on the plaintiff to accept payment of the Statutory Demand Amount or other amounts which are or become due by the defendant to the plaintiff by instalments; and

8.These orders do not affect the right of the plaintiff to take any recovery action available to him in respect of the Statutory Demand Amount or other amounts which are or become due by the defendant to the plaintiff. 

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1181 of 2013

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff
AND:	T.D. PREECE PTY LTD ACN 149 377 800 Defendant

JUDGE:	GRIFFITHS J
DATE:	20 DECEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The parties have been unable to agree orders giving effect to the reasons for judgment in these proceedings delivered on 16 December 2013 (Deputy Commissioner of Taxation v T.D. Preece Pty Ltd [2013] FCA 1365).

2. The orders proposed by the plaintiff more accurately and appropriately give effect to the reasons for judgment.  Two matters warrant brief comment.  First, I accept the plaintiff’s submission that order 1(a) is appropriate having regard to the Court’s finding that the reasons for the non-payment of the defendant’s taxation liabilities is the pendency of the proceedings in the Supreme Court and Mr Preece’s current inability to deal with his personal assets before those proceedings are finalised.  In those circumstances, it is reasonable to order that the taxation liabilities be paid in full following a reasonable period after judgment is delivered in those proceedings.  The time provided for in order 1(a) is a reasonable period of time in the circumstances. 

3. Secondly, in circumstances where the parties are apparently agreed that the plaintiff’s costs of these proceedings be fixed in the amount of $12,245.80, it is appropriate to order the defendant to pay those costs in that amount but I consider that the time for doing so should not be 3 January 2014 as proposed by the plaintiff, but 3 February 2014. 

4. Orders will be made accordingly. 

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

Associate:

Dated:       23 December 2013