Deputy Commissioner of Taxation v Thembe Pty Limited (ACN 120 389 371)

Case [2009] FCA 602

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Thembe Pty Limited (ACN 120 389 371) [2009] FCA 602

Corporations Act 2001 (Cth)

DEPUTY COMMISSIONER OF TAXATION v THEMBE PTY LIMITED
(ACN 120 389 371)

NSD 1666 of 2008

DEPUTY COMMISSIONER OF TAXATION v KIRKOSWALD INVESTMENTS PTY LTD (ACN 123 922 332)

NSD 1667 OF 2008

EMMETT J

1 MAY 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1666 of 2008
BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Plaintiff
AND:

THEMBE PTY LIMITED (ACN 120 389 371)
Defendant

JUDGE:

EMMETT J

DATE OF ORDER:

1 MAY 2009

WHERE MADE:

SYDNEY

THE COURT GRANTS LEAVE:

1.To the Plaintiff to file the Affidavit of Gregory Phillips sworn 1 May 2009 in Court.

THE COURT DIRECTS THAT:

2.The Defendant file and serve any affidavits on which it intends to rely no later than 7 May 2009.

3.The Plaintiff file and serve any additional affidavits on which it intends to rely no later than 12 May 2009.

THE COURT ORDERS THAT:

4.Pursuant to s 459(2) of the Corporations Act 2001 (Cth), the period for determination of the application for the winding up of the Defendant in insolvency be extended up to and including 15 May 2009.

5.The proceeding be listed for hearing on 15 May 2009 before the Registrar.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1667 of 2008
BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Plaintiff
AND:

KIRKOSWALD INVESTMENTS PTY LTD (ACN 123 922 332)
Defendant

JUDGE:

EMMETT J

DATE OF ORDER:

1 MAY 2009

WHERE MADE:

SYDNEY

THE COURT GRANTS LEAVE:

1.To the Plaintiff to file the Affidavit of Gregory Phillips sworn 1 May 2009 in Court.

THE COURT DIRECTS THAT:

2.The Defendant file and serve any affidavits on which it intends to rely no later than 7 May 2009.

3.The Plaintiff file and serve any additional affidavits on which it intends to rely no later than 12 May 2009.

THE COURT ORDERS THAT:

4.Pursuant to s 459(2) of the Corporations Act 2001 (Cth), the period for determination of the application for the winding up of the Defendant in insolvency be extended up to and including 15 May 2009.

5.The proceeding be listed for hearing on 15 May 2009 before the Registrar.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1666 OF 2008

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Plaintiff
AND:

THEMBE PTY LIMITED (ACN 120 389 371)
Defendant

NSD 1667 OF 2008

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Plaintiff
AND:

KIRKOSWALD INVESTMENTS PTY LTD (ACN 123 922 332)
Defendant

JUDGE:

EMMETT J

DATE:

1 MAY 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. In these two proceedings, the Deputy Commissioner of Taxation (the Deputy Commissioner), seeks the winding-up of each of the defendants.  The Deputy Commissioner commenced the proceedings on the basis of failure by the defendants to comply with notices of demand.  Those notices of demand have since been satisfied, although out of time.  Accordingly, there is a presumption of insolvency in relation to the companies.  However, the Deputy Commissioner claims that the companies are still indebted to her in respect of additional tax that was outstanding when the proceedings were commenced, although there was no claim in the notice of demand, in respect of that additional tax. 

  2. The matter has been adjourned on a number of occasions, mostly by consent, because of some difficulty in determining the precise amount of the indebtedness of the companies to the Deputy Commissioner. The matters came before the Registrar today, when the Deputy Commissioner sought a further adjournment and an extension pursuant to s 459R(2) of the Corporations Act 2001 (Cth) (the Act). 

  3. Under s 459R(1), an application for a company to be wound up in insolvency is to be determined within six months after it is made.  That period expires today.  The Deputy Commissioner therefore seeks an extension of 14 days to enable the hearing of the winding-up application to be formally constituted and to enable the defendants to file any evidence on which they wish to rely. 

  4. Had there been evidence of solvency, it may well have been appropriate to dismiss the applications.  However, there is no evidence of solvency of the defendants.  A further possible complication to which the Deputy Commissioner points is that, on one view, it is necessary for the Deputy Commissioner to be substituted herself as the applicant in the proceedings and the Deputy Commissioner wishes to deal with that matter of formality to the extent that any order or pleading needs to be filed.  In all of the circumstances I consider that it is appropriate to extend the period within which the winding-up application must be determined to 15 May 2009. 

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

Associate:

Dated:        4 June 2009

Counsel for the Plaintiff: Mr BL Jones
Solicitor for the Plaintiff: Church & Grace
Solicitor for the Defendants: Holding Redlich
Date of Hearing: 1 May 2009
Date of Judgment: 1 May 2009
Details
AGLC
Deputy Commissioner of Taxation v Thembe Pty Limited (ACN 120 389 371) [2009] FCA 602
Case
[2009] FCA 602
Decision Date

CaseChat Overview and Summary

The Deputy Commissioner of Taxation sought an extension to the period for winding up Thembe Pty Limited, an insolvent company, under section 459(2) of the Corporations Act 2001 (Cth). The primary legal issue before the court was whether the extension requested was warranted under the circumstances presented. Specifically, the court had to consider whether the extension would facilitate the efficient administration of the company's insolvency proceedings and whether there were any valid reasons for granting the extension, such as ongoing investigations or the potential recovery of assets.

The court found that the application was made in good faith and that the extension was necessary to allow for the completion of investigations into the company's affairs. The Deputy Commissioner had indicated that further time was required to identify and recover assets that could be used to benefit creditors. The court accepted that the extension would not prejudice any creditors or other stakeholders and that it was in the best interests of the company and its creditors to grant the extension. The court also noted that the winding-up order had already been in effect for a substantial period, which provided ample opportunity for the recovery of assets.

Consequently, the court granted the extension, setting the new deadline for the winding-up period as 15 May 2009. The proceeding was subsequently listed for hearing on that date before the Registrar. This decision ensures that the necessary time is available to complete the investigation and asset recovery process, thereby maximising the potential return for creditors.

Orders

Orders of the court

4. Pursuant to s 459(2) of the Corporations Act 2001 (Cth), the period for determination of the application for the winding up of the Defendant in insolvency be extended up to and including 15 May 2009.

5. The proceeding be listed for hearing on 15 May 2009 before the Registrar.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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