Ferella Pty Ltd v Deputy Commissioner of Taxation
[2013] VSC 573
•8 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
CORPORATIONS LIST
No. S CI 2013 00964
IN THE MATTER OF FERELLA PTY LTD (ACN 101 551 704)
BETWEEN:
| FERELLA PTY LTD (ACN 101 551 704) | Plaintiff |
| V | |
| DEPUTY COMMISSIONER OF TAXATION | Defendant |
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JUDGE: | GARDINER AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2013 | |
DATE OF JUDGMENT: | 8 November 2013 | |
CASE MAY BE CITED AS: | Ferella Pty Ltd v Deputy Commissioner of Taxation | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 573 | |
CORPORATIONS — Application to set aside statutory demand under Corporations Act 2001 (Cth) by reason of alleged genuine dispute under s 459G of the Act and ‘some other reason’ under s 459J of the Act — Plaintiff contended that maintenance of demand by the defendant in the knowledge of the personal situation of the sole director of plaintiff was unconscionable and an abuse of process — No genuine dispute raised as plaintiff had not displaced Deputy Commissioner’s prima facie and conclusive evidence of liability — Maintenance of demand not unconscionable or an abuse of process.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S.A. Tisher | Bolton & Swan Pty Ltd |
| For the Defendant | Mr S. Linden | Australian Taxation Office Legal Services Branch |
HIS HONOUR:
On 6 February 2013, the defendant (“the Deputy Commissioner”) served a statutory demand dated 4 February 2013 issued pursuant to s 459E of the Corporations Act2001 (Cth) (“the Act”) on the plaintiff (“Ferella”) demanding the sum of $330,606.40. The demand was accompanied by an affidavit of Joshua Mayne, an officer of the Australian Taxation Office, which verified that the amount was due and payable by Ferella as required by s 459E(3) of the Act.
The schedule to the demand divides the amount demanded into two components. The first, for $229,718.10, is claimed in respect of a Running Balance Account (RBA) deficit debt owing as at 4 February 2013 for amounts due under the BAS provisions of the Income Tax Assessment Act 1997 (“the ITAA 1997”), estimates due under Division 268 in Schedule 1 to the Taxation Administration Act 1953 (“the TAA 1953”), administrative penalties due under Part 4-25 of Schedule 1 of the TAA 1953 and interest payable under s 8AAZF of the TAA 1953. These debts are said to be collectively a debt due and payable by Ferella pursuant to s 8AAZH of the TAA 1953. The second category of debt demanded is in respect of superannuation guarantee charges for various quarters commencing 1 July 2008, penalties imposed on those amounts outstanding pursuant to Part 7 of the Superannuation Guarantee (Administration) Act1992 (“the SGAA 1992”) and interest payable pursuant to s 49 of the SGAA 1992 and Part IIA of the TAA 1953.
On 27 February 2013, Ferella made application by originating process pursuant to ss 459G, 459H and 459J of the Act for orders that the demand be set aside. The grounds of such application were said to be that: (a) because of a defect in the demand, substantial injustice would be caused unless it were set aside;[1] (b) there was a genuine dispute between the plaintiff and the defendant about the existence or amount of the debt to which the demand related; and (c) there was “some other reason why the demand should be set aside”.[2] Ferella does not now press the first ground.
[1]This ground adopts the text of s 459J(1)(a).
[2]This expression adopts the text of s 459J(1)(b).
Ferella relies on affidavits of its sole director, Dario Carlo Ferella, sworn 27 February 2013 (“February affidavit”), 29 May 2013 (“May affidavit”) and 14 August 2013 (“August affidavit”). Leave was sought at the hearing of this application to file a fourth affidavit of Mr Ferella dated 22 October 2013 (“October affidavit”). The Deputy Commissioner did not oppose such leave and it was granted.
The Deputy Commissioner relies on affidavits of Gregory Phillips sworn 23 April 2013 and 9 August 2013.
Application by Ferella for adjournment
At the hearing of this application on 24 October 2013, counsel for Ferella made application for an adjournment of the application for three months. That application was based on the personal circumstances of its sole director, Mr Ferella. In the October affidavit, Mr Ferella states that on 15 July 2013, his partner, Teresa Paulino, was stabbed to death in her home and he says that that event has taken “an imaginable harmful toll upon my psyche”. He states that he has been receiving support from the Victims of Crime organisation and a psychologist to assist him in recovering from this event. He states that he has not been in the frame of mind to deal with Ferella’s business commitments including these legal proceedings, nor to adequately instruct his accounting and legal representatives. In the alternative, in the event that the application for an adjournment was not successful and the application was decided adversely to Ferella, it sought an extension of time for compliance with the demand for three months pursuant to s 459F(2)(a)(i) of the Act.
At the hearing of the application, I refused to adjourn the application, gave brief reasons and indicated that I would elaborate on those reasons when I came to give judgment on the substantive application.
This application has had an unsatisfactorily protracted history. It has been adjourned on six occasions, all but one of them with the consent of the Deputy Commissioner. The proceeding was issued on 27 February 2013 and was first returnable on 27 March 2013. On that occasion, directions were made for the filing of affidavit material and the proceeding was set down for hearing on 15 May 2013. On that date the proceeding was adjourned again on the papers by consent to 5 June 2013. Again, by consent orders made on 4 June 2013, the proceeding was further adjourned to 17 July 2013. On that occasion, the proceeding was again adjourned by consent to 31 July 2013. On 29 July 2013, minutes of consent orders were filed again, adjourning the hearing set down for 31 July 2013 to 14 August 2013.
On 14 August 2013, Ferella sought a further adjournment of the application, which was opposed by the Deputy Commissioner. Ferella relied on the August affidavit of Mr Ferella, who exhibited several medical certificates in support of his contention that, by reason of his personal circumstances and misfortunes, he had not been able to pay proper attention to the matter and required an adjournment in order that he could do so. The hearing was then adjourned to 24 October 2013.
The scheme of Part 5.4 of the Act is designed to enable a court to dispose of these types of applications in a short summary way. In Drum Cafe Australia Pty Ltd v Lieberman,[3] in circumstances where an originating process had been before the court on 16 occasions and adjourned over by consent, Barrett J stated at [13]:
It must be emphasised that s 459G applications are not to be approached by the parties as some form of holding pattern or a formalised negotiation arena while they try to settle their differences. The procedure is expected to be a swift and efficient one under which the existence or non-existence of a genuine dispute is determined promptly and in a relatively summary way so that it can be seen without undue delay whether grounds for presentation of a winding up [application] exist.
[3][2010] NSWSC 642.
The several adjournments of the proceeding were apparently agreed to because of Mr Ferella’s personal circumstances. I consider, however, that the stage has been reached where the application has to be dealt with. Mr Ferella has had the opportunity over several months since the demand was served in late February this year to initiate administrative processes that might have resulted in a reduction of the amount demanded. This action could have included the lodgement of statutory declarations that might have varied the estimates which have been made by the Deputy Commissioner and lodging objections to assessments. Mr Ferella’s awareness of his ability to take such courses of action is referred to in his affidavits.
The effect of the granting of a further adjournment would be to delay the presumption of insolvency arising if Ferella’s application is dismissed, as I have concluded it should for the reasons given below. On the other hand, no good purpose for an adjournment has been shown by Mr Ferella. It is not said what would take place during the three month period of the proposed adjournment.
The Deputy Commissioner has been extraordinarily liberal in acceding to the previous adjournments of the proceeding, particularly when one bears in mind the decision of the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd and ors.[4] Even if Ferella had embarked on Part IVC proceedings and objected to the assessments raised by the Commissioner, on an application of Broadbeach, Ferella still could not contend that it had a genuine dispute in respect of that part of the debt claimed by the Deputy Commissioner which was the subject of an assessment. In Broadbeach, the plurality observed that:
The phrase “may be recovered” in ss 14ZZM and 14ZZR of the Administration Act applies to the statutory demand procedure. That state of affairs places the existence and amounts of the “tax debts” outside the area for a “genuine dispute” for the purposes of s 459H(1) of the Corporations Act. [5]
I am also mindful of the fact that some of the alleged debts date back to 2008 and are all the subject of either prima facie or conclusive evidence provisions of revenue legislation.
[4][2008] HCA 41 (“Broadbeach”).
[5]At 58.
The substantive application
I now turn to a consideration of Ferella’s substantive application to set aside the demand.
In his February affidavit, Mr Ferella asserts that the demand only stated a total of the Running Balance Account debt and was therefore defective because the several constituent debts are not identified. That part of the application is now not pressed.[6] Mr Ferella then says that in February 2013, he engaged Ferella’s accountants, Armstrong and Shaw, to advise it. He states that the accountants have indicated to him that the RBA was “badly kept such that it was impossible for Ferella to reconcile or check”, that it contained several adjustments that had been entered by the plaintiff (sic)[7] without any detail and that the RBA contained several estimates without any supporting detail. Mr Ferella also asserts that some Input Tax Credits were not claimed and, conversely, some Input Tax Credits were claimed incorrectly. He states that the accountants have identified those transactions in spreadsheets which are exhibited to his affidavit. He then states that Ferella denies the indebtedness claimed in the demand.
[6]It would seem that such an attack is not open to Ferella. See Australia DIS Pty Ltd v Deputy Commissioner of Taxation [2012] VSC 331 at 6-14.
[7]It seems clear that this is a reference to the Deputy Commissioner, the defendant in this application.
Mr Linden, counsel for the Deputy Commissioner, stated at the hearing of this application that Mr Phillips’ affidavit of 23 April is overtaken by his affidavit of 9 August 2013. The latter affidavit duplicates and supplements the evidence contained in the earlier affidavit and I shall treat the 9 August 2013 affidavit as the evidence relied upon in opposition to the application.
In his affidavit, Mr Phillips deposes to his familiarity with the records system maintained by the Deputy Commissioner. He describes the process by which a Running Balance Account was established for Ferella and how primary tax debts were allocated to it pursuant to s 8AAZD of the TAA 1953.
Mr Phillips states that ATO records relating to Ferella which he accessed show that Ferella lodged BAS and Income Activity Statements (IAS) with the Deputy Commissioner for a number of periods. The effect of the lodgement of those BAS and IAS was to raise liabilities under the BAS provisions, including PAYG withholding tax, Goods and Services Tax and Income Tax Instalment liabilities. When such returns are received by the Deputy Commissioner, Mr Phillips states that they are processed either electronically or manually. The returns that were lodged by Ferella are identified in Mr Phillips’ affidavit. The liabilities raised by the lodgement of those documents were allocated to Ferella’s Running Balance Account. The first such liability that was raised was for ITW and GST for late 2007. The liabilities are all “self-assessed liabilities”, that is, they are raised because of the information contained in the documentation lodged by Ferella with the Deputy Commissioner.
Mr Phillips deposes that the Deputy Commissioner conducted an audit of Ferella in relation to its PAYG obligations and in July 2012 the Deputy Commissioner raised estimates in respect of Ferella’s income tax withholding liabilities for a number of monthly periods commencing 1 July 2008 and concluding 31 May 2012. On 16 July 2012, the Deputy Commissioner issued Ferella with a notice of estimate of liability to pay to the Commissioner of Taxation PAYG withholding amounts. Mr Phillips states that there was no statutory declaration lodged by Ferella substantiating the actual unpaid amount of the PAYG withholding amounts as provided for under s 268-40(1), Item 1(a) of Schedule 1 to the TAA 1953 in response to the estimate notices. If such a statutory declaration had been lodged, it may have resulted in a decrease in the liability raised by the Deputy Commissioner’s estimates.
In October 2012, the Deputy Commissioner revoked the estimates in respect of Ferella’s income tax withholding liabilities for some of the periods for which estimates had been struck. On the same day he issued Ferella with revised estimates for those periods.
Again, Ferella did not respond by lodging a statutory declaration substantiating the actual amount paid of the PAYG withholding amounts in respect of the amounts claimed in the new estimate notice.
Mr Phillips’ affidavit details the computation of the penalties which arise upon failure to pay taxation liabilities when due and for failure to lodge BAS statements.
Mr Phillips deposes that on 19 July 2012, the Deputy Commissioner issued notices of superannuation guarantee charge default assessments pursuant to s 75 of the SGAA 1992. Such assessments are conclusive evidence of Ferella’s liability for SGC under s 75(1) of the SGA.
Mr Phillips deposes that the ATO records reveal that Ferella has not lodged any objection or application for review in relation to the liabilities the subject of the demand which comprise the RBA deficit debt, the SGC debt or the penalties claimed in the demand. Mr Phillips states that the ATO records reveal that Ferella lodged its BAS for the periods between 1 July 2010 and 30 June 2011 on 9 August 2013 and that no tax was refundable to Ferella as a result of the lodgement of those BAS.
In his May affidavit, Mr Ferella makes certain criticisms of Mr Phillips’ affidavit which are chiefly of a typographical nature. He asserts that the failure to lodge BAS penalty, which is claimed to be $65,626.50, is incorrect as the failure to lodge penalty was only increased in respect of documents required to be lodged after 28 December 2012, whereas the BAS referred to were required to be lodged before that date and the previous, lower, penalties apply. He asserts that the total penalty should be reduced to $29,700. As to the superannuation guarantee charge, he asserts that every quarterly period claimed is incorrect, but does not support that assertion by any evidence. He states that over the period under review, this amounts to a difference of only $230. In addition, he asserts without substantiation that an amount of $3,121.68 was paid for which no credit has been given.
In his August affidavit, Mr Ferella states that Ferella wished to make application for additional time in which to make an objection to the default assessments of the superannuation guarantee charge liabilities and to object to the penalties that have been imposed. He accepts that Ferella has not yet raised objections and that this matter has been on foot for some time, but says he has faced some rather unfortunate circumstances with business commitments, surgery, medical treatment and the death of his partner to deal with during that time. He exhibits three medical certificates dated between April and June 2013. He also states that he wishes to investigate Mr Phillips’ evidence in respect of the BAS lodged for periods between 1 July 2010 and 30 June 2011 which are said to result in nil tax being refundable. He asserts that Ferella does not consider this to be the case and wants to investigate it. This has not been followed up by Ferella and I again note that the liabilities raised by the BAS which were lodged were self-assessed liabilities.
In Australia DIS Pty Ltd v Deputy Commissioner of Taxation,[8] Ferguson J considered an application to set aside a statutory demand in which the debt claimed in the demand arose from a Running Balance Account deficit debt under the same provisions as those in the demand in this case. Part of her Honour’s reasons were given over to a discussion as to whether the failure to break up the Running Balance Account debt into its constituent parts amounted to a defect. This was originally a ground for attacking the demand in this instance, but it is not pressed.
[8][2012] VSC 331.
Her Honour then went on to consider whether the defendant in that case had raised a genuine dispute in respect of the debt. At paragraphs 19 to 25, her Honour discusses the effect of estimates issued by the Commissioner and the regime whereby such estimates can be reduced or revoked by a statutory declaration filed by the taxpayer:
[19] Under the legislation, the Commissioner may estimate unpaid and overdue PAYGW amounts. The Commissioner must give written notice of the estimate. The recipient of such a notice must pay the amount of the estimate and the estimated amount is due and payable when the Commissioner gives the notice. The liability to pay the amount of the estimate is separate and distinct from the underlying liability and the recipient of the notice is liable even if the underlying liability never existed or has been discharged in full or is less than the estimate.
[20] If the recipient of the notice wants to have the estimated amount reduced or revoked, then a statutory declaration or affidavit complying with and for the purposes of the legislation must be provided to the Commissioner. The statutory declaration must be provided within seven days of the notice of estimate being given or such longer period as allowed by the Commissioner. In the case of a company, the statutory declaration or affidavit must be made by one of its directors or secretary. Section 268-90(2), Schedule 1, TAA 1953 provides in part that the statutory declaration or affidavit must verify the amounts withheld for PAYGW during the particular period in question or that the company did not withhold any such amounts and what has been done to comply with its withholding obligations. The amount of the estimate is reduced if the statutory declaration is to the effect, or the affidavit verifies facts sufficient to prove, that a specified lesser amount is the unpaid amount of the underlying liability. The estimate is revoked if the statutory declaration is to the effect, or the affidavit verifies facts sufficient to prove, that the underlying liability never existed. If this process is followed and as a consequence the estimate is reduced or revoked after a statutory demand has been served by the Commissioner, then the statutory demand is changed accordingly and is taken to have effect as changed from the time the demand was served.
[21] The notice of estimate that the Deputy Commissioner served on DIS included statements about how the estimate could be reduced or revoked. It drew attention to the requirement that the statutory declaration must be given within 7 days or any longer period allowed by the Commissioner and that the declaration must comply with s 268-90(2). The text of that section was set out in the body of the notice. In addition, a detailed form of statutory declaration for the purpose of seeking revocation or reduction was sent with the notice to DIS together with instructions for completion of the declaration.
[22] DIS accepts that it did not provide the Commissioner with a statutory declaration nor an affidavit that complied with the legislative requirements for reducing or revoking the estimate. The Deputy Commissioner contended that DIS is therefore liable for the whole amount claimed because unless and until the estimate is reduced or varied, DIS was obliged to pay the estimated amount. The Deputy Commissioner submitted that this is so even if DIS was replaced as trustee of the trust in January 2011.
[23] DIS relied on s 268-35, Schedule 1 of the TAA 1953. That section provides that the Commissioner may at any time reduce the amount of the estimate or revoke the estimate, but is not obliged to consider whether or not to do so. DIS contends that faced with the affidavits that it has filed in this proceeding, the Commissioner ought to have revoked the estimates for the various periods and issued fresh estimates.
[24] In my opinion, that contention does not give rise to a genuine dispute about the debt as the argument is hopeless and must fail. The section specifically provides that there is no obligation on the Commissioner to consider whether an estimate should be reduced or revoked. There is no reason to depart from the plain meaning of those words. Further, the legislation specifically provides that the recipient of a notice of estimate is liable even if the underlying liability never existed. As noted above, the object of Division 268 is to enable the Commissioner to take prompt and effective action to recover amounts not paid as required. In furtherance of that object, the legislation empowers the Commissioner to make estimates of unpaid amounts and sets down a particular process that the recipient of a notice of estimate must follow if it seeks revocation or reduction of the estimate. DIS failed to comply with that procedure. Having regard to the object and plain words of the statute, there could be no obligation on the Commissioner to act on the basis of affidavits filed in this proceeding which were not made by a director nor secretary and which fell short of what was required under the legislation to obtain a reduction in or revocation of the estimates. In this regard, the affidavits that DIS relied on principally went to two matters. First, that on 20 January 2011, DIS was replaced as trustee and, in its view, it was not liable for tax liabilities incurred after that date in relation to the trust. Second, that there was uncertainty about the amount of the tax liability for the period prior to 20 January 2011. Given that DIS was under an obligation to report its PAYGW liabilities by the date that they were due, it is notable that the affidavits did not include any evidence about any amounts that DIS had withheld for PAYG before 20 January 2011, nor the actual unpaid amount of the liability for that period. Such information would have been required were the estimates to have been reduced in respect of the pre 20 January 2011 period.
[25] Having so far failed to have the estimates reduced or revoked, DIS remains liable to pay the estimated amounts. However, I note that if:
·the statutory demand stands; and
·DIS does not pay the amount demanded; and
·the Deputy Commissioner applies to wind up DIS,
then DIS has a further opportunity to reduce or revoke the estimate. Under the legislation, if the Deputy Commissioner applies to wind up DIS, then it may file and serve an affidavit meeting the relevant requirements, including those matters required to be verified.
Ferguson J deals with Running Balance Accounts at paragraphs 27 to 31 of the judgment. As her Honour observes at paragraph 27, a Running Balance Account statement, which shows the liability of the taxpayer at the date of the demand, is prima facie evidence that the amount is correct under s 8AAZI of the TAA 1953 and regulation 45 of the Taxation Administration Regulations 1976 (Cth). Her Honour observed at paragraph 31:
… for the purposes of this proceeding, the RBA statement relied on by the Deputy Commissioner does evidence the amount owed at the date of the demand and should be accepted in the absence of reliable evidence to the contrary.
Insofar as the dispute about the demand is in respect of the estimates which had been raised, I do not consider there is any genuine dispute raised in respect of those amounts for exactly the same reasons as her Honour gives in the above paragraphs. Further, despite ample opportunity to do so, Ferella has not taken any steps to vary the estimates. Aside from unsubstantiated and unsupported assertion, Ferella has not sought to displace the prima facie evidence of the Deputy Commissioner in relation to the amount of the estimates.
Running Balance Accounts are the subject of provisions in Part IIB of the TAA 1953. In that Part, after making provision in respect of establishment of RBAs, allocation of tax debts to RBAs and general interest charges accruing on RBA deficit debts, s 8AAZH(1) provides:
If there is an RBA deficit debt on an RBA at the end of a day, the tax debtor is liable to pay to the Commonwealth the amount of the debt. The amount is due and payable at the end of that day.
Section 8AAZI provides:
(1)The production of an RBA statement:
(a)is prima facie evidence that the RBA debt was duly kept; and
(b)is prima facie evidence that the amounts and particulars in the statement are correct.
(2)In this section
RBA Statement includes a document that purports to be a copy of an RBA statement and is signed by the Commissioner or a delegate of the Commissioner or by a second Commissioner or Deputy Commissioner.
Mr Phillips states in his affidavit that he accessed the records of the Deputy Commissioner on 9 August 2013 and generated an RBA statement of account in respect of the RBA deficit debt owed by Ferella. I consider this to be prima facie evidence that the RBA balance of Ferella was in deficit in the amount of $229,718.10. I do not consider that the evidence filed on behalf of Ferella displaces the Deputy Commissioner’s prima facie evidence and Ferella is liable for the amount of that debt pursuant to s 8AAZH(1) of the TAA 1953.
Although it was not raised in Ferella’s written submissions, Mr Tisher of counsel who appeared on behalf of Ferella contended that the demand in these circumstances ought be set aside under s 459J(1)(b) because it was unconscionable and an abuse of process for the Deputy Commissioner to maintain his demand in the knowledge of the misfortunes that have befallen Mr Ferella since the demand was served. Since the medical certificates exhibited to Mr Ferella’s August affidavit, there has been no further medical evidence adduced by Ferella in respect to Mr Ferella’s medical condition. I do not consider that there is any feature of the Deputy Commissioner’s conduct in these circumstances by which it could be said that he is ‘using, unjustly and unconscientiously the statutory demand mechanism’.[9]
[9]See Willaire Pty Ltd v Equititrust Limited (2010) 81 ACSR 200 at 39–41 per Muir JA.
My function is to deal with this application on the evidence before me and Ferella and the Deputy Commissioner are free to conduct whatever negotiations they respectfully think fit following the outcome of this application. This might involve Ferella lodging objections and statutory declarations in order to modify the amount of its liability, but that is a matter for it.
The relevant test to be applied in applications to set aside statutory demands by reason of the existence of a genuine dispute requires that the dispute have sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion, and sufficient factual particularity to exclude the merely fanciful or futile. Something “between mere assertion and the proof that would be necessary in a court of law” may suffice.[10] Here, at its height, Ferella’s attempt to impeach the statutory demand consists of mere assertion and I do not consider that the prima facie and conclusive evidence of the Deputy Commissioner in regard to Ferella’s liability has been displaced.
[10]See TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67 at 56-57.
In my view, the application should be dismissed with costs, including reserved costs.
Application by Ferella for extension of time
I also reject Ferella’s application for an extension of time for compliance with the demand for a period of three months. Under s 459F(2), the Court has power to extend the period of time for compliance if an application is made, as it has been here, to set aside the demand. In Vista Commercial Construction Pty Ltd v Deputy Commissioner of Taxation,[11] it was held that a recipient of a demand who has no valid ground to have it set aside has no right to apply to the Court for an extension. The Court said at paragraphs 27 to 28:
… the purpose, or certainly a significant purpose for which the power to extend time for compliance is conferred is to take account of the fact that there has been no compliance with the initial 21 day period because s 459G proceedings have been commenced and the circumstances are such that the statutory period of seven days would be unreasonable… The statutory power to extend time is not conferred so that a creditor unable to pay debts as they fall due can obtain an extended period of time to comply with the demand.
In these circumstances, the period of time for compliance with the demand will expire seven days from the date of the order dismissing the application to set aside the demand. If the time for compliance were extended for another three months, this would delay the coming into existence of the presumed act of insolvency. Ferella has presented no good purpose for the grant of such an extension.
[11]25 ACSR 285 (“Vista”).
The demand in this case was served in late February of this year, and I do not consider, adopting the phraseology in Vista, that to keep Ferella to the seven day compliance period after the dismissal of this application would be “unreasonable”.
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