Dolevski v Hodpik Pty Ltd

FEDERAL COURT OF AUSTRALIA

Dolevski v Hodpik Pty Ltd [2011] FCA 54

Citation:

Dolevski v Hodpik Pty Ltd [2011] FCA 54

Parties:

MARINA DOLEVSKI SUING IN HER CAPACITY AS ASSISTANT COMMISSIONER OF TAXATION, SUPERANNUATION v HODPIK PTY LTD ACN 078 105 709, ANDREW PIKE and JILL STROUD

File number:

NSD 1137 of 2009

Judge:

YATES J

Date of judgment:

7 February 2011

Catchwords:

SUPERANNUATION – self-managed superannuation fund - contraventions of ss 62(1), 84(1) and 109(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) (the Act) established – whether contraventions due to reasonable reliance on information supplied by another person or due to reasonable mistake such that defences under s 323(2) of the Act may be relied upon – whether respondents acted honestly in all the circumstances of the case such that defence under s 221(2) of the Act may be relied upon

Held: Defences under ss 323(2) and 221(2) of the Act available. Application dismissed.

Legislation:

Superannuation Industry (Supervision) Act 1993 (Cth), ss 62(1), 82, 83, 84(1), 109(1), 221, 323

Cases cited:

Vivian (Deputy Commissioner of Taxation (Superannuation)) v Fitzgeralds [2007] FCA 1602; (2007) 69 ATR 834

Date of hearing:

15 November 2010, 2 December 2010

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

74

Counsel for the Applicant:

E A Collins SC

Solicitor for the Applicant:

Australian Government Solicitor

Counsel for the Respondents:

A Blank

Solicitor for the Respondents:

Colin Daley Quinn

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1137 of 2009

BETWEEN:

MARINA DOLEVSKI SUING IN HER CAPACITY AS ASSISTANT COMMISSIONER OF TAXATION, SUPERANNUATION
Applicant

AND:

HODPIK PTY LTD
ACN 078 105 709
First Respondent

ANDREW PIKE
Second Respondent

JILL STROUD
Third Respondent

JUDGE:	YATES J
DATE OF ORDER:	7 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1137 of 2009

BETWEEN:

MARINA DOLEVSKI SUING IN HER CAPACITY AS ASSISTANT COMMISSIONER OF TAXATION, SUPERANNUATION
Applicant

AND:

HODPIK PTY LTD
ACN 078 105 709
First Respondent

ANDREW PIKE
Second Respondent

JILL STROUD
Third Respondent

JUDGE:	YATES J
DATE:	7 FEBRUARY  2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this proceeding the applicant, as delegate of the Commission of Taxation, seeks declarations and civil penalties arising out of certain alleged contraventions of the Superannuation Industry (Supervision) Act 1993 (Cth) (the Act).

2. The applicant alleges that the first respondent, as trustee of the Hodpik Superannuation Fund (the Fund), has contravened three civil penalty provisions of the Act: ss 62(1), 84(1) and 109(1). The applicant also alleges that the second and third respondents, as directors of the first respondent, were involved in the first respondent’s contraventions and are taken by s 194 to have contravened those provisions.

3. Subject to certain defences,…