Hillig v Commissioner of Taxation

In the case of Hillig v Commissioner of Taxation, the plaintiff, Hillig, acting as liquidator for Q*Soft Australia Pty Ltd, sought to recover payments made to the Commissioner of Taxation under voidable transactions. The matter was heard in the Supreme Court of Queensland. The primary legal issue the court had to address was whether the Commissioner of Taxation or the Commonwealth is the correct defendant in an action seeking to recover payments made under voidable transactions. Another issue was whether the Commissioner had suffered any loss or damage due to an order made under section 588FF of the Corporations Act, which would affect the director's liability to indemnify the Commissioner.

The court considered the relevant sections of the Corporations Act, including sections 588FA, 588FE, 588FF, and 588FG(5), as well as sections 220AAM, 220AAZA, 221F, and 221R of the Income Tax Assessment Act 1936, and sections 10 and 144 of the Acts Interpretation Act 1901 and 1954, respectively. The court distinguished Barton v Commissioner for Motor Transport, Mason v New South Wales, and Sargood Bros v Commonwealth, and considered Commonwealth v Precision Pools Pty Ltd. Based on the reasoning of these cases, the court determined that the Commonwealth, not the Commissioner of Taxation, was the proper defendant for the plaintiff's action to recover payments made under voidable transactions. The court also found that the Commissioner had suffered loss or damage resulting from the order made under section 588FF, thus the director was liable to indemnify the Commissioner.

The court granted leave to amend the statement of claim and application to substitute "ACN 060 329 482 Pty Ltd" for "Q*Soft Australia Pty Ltd" and "Commonwealth of Australia" for "the defendant." The court entered judgment in favour of the plaintiff against the defendant in the sum of $72,149.40, together with interest and costs. The third parties were ordered to indemnify the defendant against $71,000 of the plaintiff's claim against the defendant, together with interest and costs, and to pay the defendant's costs of the third party proceedings and the application for judgment.