Deputy Commissioner of Taxation v v & v Investments (NSW) Pty Ltd

[2006] FCA 787

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v V & V Investments (NSW) Pty Ltd
[2006] FCA 787

DEPUTY COMMISSIONER OF TAXATION v V & V INVESTMENTS (NSW) PTY LTD

NSD1528 OF 2005

EMMETT J
31 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1528 OF 2005

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION PLAINTIFF
AND:	V & V INVESTMENTS (NSW) PTY LTD DEFENDANT
JUDGE:	EMMETT J
DATE OF ORDER:	31 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The winding up of the defendant be terminated.

2. Pursuant to section 473(3) and /or 473(5) of the Corporations Act 2001, the remuneration of the liquidator of the defendant, Steven Nicols, be determined to be the sum of $15,250 inclusive of legal costs and GST.

3.   Richard Cusumano pay the costs of the liquidator.

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	NSD1528 OF 2005

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION PLAINTIFF
AND:	V & V INVESTMENTS (NSW) PTY LTD DEFENDANT

JUDGE:	EMMETT J
DATE:	4 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 30 September 2005, Registrar Hedge made an order that V & V Investments (NSW) Pty Ltd (‘the Company’), be wound up. Mr Stephen Nicols, of Nicols and Brien, an official liquidator, was appointed a liquidator of the Company. The tax costs incurred by the plaintiff, the Deputy Commissioner of Taxation (‘the Commissioner’), were ordered to be reimbursed to the Commissioner out of the property of the Company, in accordance with s 466(2) of the Corporations Act 2001 (Cth) (‘the Act’). The order was made on the basis that the Company has failed to comply with a statutory demand.

2. Mr Richard Cusumano, a director of the Company, has now applied for an order that the winding-up of the Company be terminated.  Mr Cusumano has filed evidence indicating that the statutory demand was not forwarded to the Company by its accountant and the winding-up order was made in circumstances where there was no appearance for the Company.  The management of the Company’s affairs clearly leaves something to be desired for that circumstance to arise.  However, I have evidence before me to indicate that the debt due to the Commissioner has been paid in full, together with the costs, and that the costs of the liquidator to date have been paid.  Neither the Commissioner nor the liquidator opposes the termination of the winding-up.

3. The liquidator has filed an affidavit concerning the affairs of the Company.  The affidavit indicates that the principal asset of the Company is a parcel of real estate, having a value of between $230,000 and $250,000.  The liabilities of the Company are directors’ loan accounts of approximately $165,000.  The parties agree that the remuneration of the liquidator be fixed at the sum of $15,250 inclusive of legal costs and GST. It is clear that the Company has a surplus of assets to liabilities and, in the circumstances, there is no reason why the winding up of the Company should not be terminated.

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

Associate:

Dated:             23 June 2006

Solicitors for the Plaintiff:	Hunt & Hunt
Solicitors for the Defendant:	Gordon & Johnstone
Solicitors for the Liquidator:	Craddock Murray & Neumann
Date of Hearing:	31 March 2006
Date of Judgment:	31 March 2006