Deputy Commissioner of Taxation v Thembe Pty Limited (ACN 120 389 371)
[2009] FCA 602
•1 May 2009
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
PlaintiffAND: 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)
DefendantNSD 1667 OF 2008
BETWEEN: DEPUTY COMMISSIONER OF TAXATION
PlaintiffAND: KIRKOSWALD INVESTMENTS PTY LTD (ACN 123 922 332)
Defendant
JUDGE:
EMMETT J
DATE:
1 MAY 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
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.
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).
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.
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
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