Deputy Commissioner of Taxation v Tezoni Pty Ltd

[2008] FCA 1001

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Tezoni Pty Ltd [2008] FCA 1001

DEPUTY COMMISSIONER OF TAXATION v TEZONI PTY LTD ACN 003 017 445 & ORS

NSD 2528 OF 2007

EMMETT J

24 JUNE 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2528 OF 2007

BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Plaintiff

AND:

TEZONI PTY LTD ACN 003 017 445
Defendant

CHIEF COMMISSIONER OF STATE REVENUE
First Supporting Creditor

GARY W. DAW
Second Supporting Creditor

JAGI PTY LTD
Third Supporting Creditor

JUDGE:	EMMETT J
DATE OF ORDER:	24 JUNE 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Tezoni Pty Ltd, ACN 003 017 445, be wound up.

2.Mark Roufeil, of Gavin Thomas & Partners, an official liquidator, be appointed the liquidator of the Defendant corporation.

3.The costs of the Plaintiff of these proceedings be fixed in the amount of $4,218.08.

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 2528 OF 2007

BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Plaintiff

AND:

TEZONI PTY LTD ACN 003 017 445
Defendant

CHIEF COMMISSIONER OF STATE REVENUE
First Supporting Creditor

GARY W. DAW
Second Supporting Creditor

JAGI PTY LTD
Third Supporting Creditor

JUDGE:	EMMETT J
DATE:	24 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application to wind up Tezoni Pty Limited (the Company).  The application is based on the Company’s failure to comply with a statutory demand served on it by the plaintiff, the Deputy Commissioner of Taxation (the Commissioner), on 31 August 2007.  The Company appeared in the proceeding and sought successive adjournments with a view to making arrangements for the satisfaction of the debt due to the Commissioner. 

2. Some six or seven adjournments were granted, a number of which were not opposed by the Commissioner.  However, the stage was reached where the Commissioner had had enough and last Friday there was a contested application for an adjournment, which was refused by a Deputy Registrar of the Court.  The Company immediately sought review of the Registrar’s decision.  Because of that application for review, the Registrar declined at that stage to make a winding up order.  The matter came before me as duty judge late in the afternoon last Friday.  Having regard to the time of day, which was after normal Court hours by that time, I adjourned the hearing of the winding up application to Monday, 23 June 2008.

3. At that stage I heard evidence and argument from counsel for the Company in support of a further adjournment of the winding up application.  The basis upon which the adjournment was sought was that an administrator had been appointed on Friday morning.  The administrator produced a brief report on Monday indicating a possible basis upon which the Company may be able to enter into a deed of company arrangement.  However, the material was ill-organised and it was by no means clear how the creditors might be better off by reason of a deed of company arrangement. 

4. The matter was complicated by the fact that the Company’s bankers had a charge over various assets, some of which were owned by the Company and some of which were owned by other individuals or entities.  It was by no means clear whether all of the liabilities secured by the charges were owed by the Company or by other individuals or entities.  On one view, there was some prospect of the creditors’ being advantaged by a deed of company arrangement.  If there were assets that were not already charged to secure the Company’s liabilities and they were made available for creditors, there may have been some advantage to creditors.

5. In the circumstances, I gave the Company the opportunity of producing further material to demonstrate the precise financial position of the Company and related individuals and entities.  I therefore adjourned the matter to today.  I indicated to counsel for the Company yesterday that, unless the costs thrown away by that further adjournment were paid by this morning, I would not entertain an application for any further adjournment.  Counsel for the Commissioner estimated the costs at $3000, a figure that was accepted by the Company as a reasonable estimate of the costs thrown away.

6. When the matter was called on for hearing this morning, counsel for the Company informed the Court that the Company’s banker has now appointed receivers and managers of all of the charged assets and that there is therefore no utility in proceeding with any proposed deed of company arrangement.  In the circumstances no further application for an adjournment was made. 

7. I am satisfied that the prerequisites for the making of a winding up order have been satisfied having regard to the affidavit evidence of Ms Meryl Ellen Fraser of 10 September 2007, Mr David Brown of 21 December 2007, Mr Andrew Smith of 27 March 2008 and Mr David Brown of 24 June 2008.  The requirements for advertising the application have been satisfied.  Two unsecured creditors have indicated they support the winding up order, being the Office of State Revenue and another unsecured creditor.  I therefore propose to make orders winding up the Company and appointing Mr Mark Ronfeil, of Grant Thomas & Partners, as liquidator of the Company.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       5 August 2008

Counsel for the Plaintiff:	Mr F.F.F. Salama
Solicitor for the Plaintiff:	ATO Legal Services Branch
Counsel for the Defendant:	Mr A.P. Cheshire
Solicitor for the Defendant:	Toltz Lawyers
Date of Hearing:	23 and 24 June 2008
Date of Judgment:	24 June 2008