Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation

[2010] NSWSC 1430

CITATION:	Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1430
HEARING DATE(S):	09/12/10
JUDGMENT DATE :	9 December 2010
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	9 December 2010
DECISION:	Application dismissed
CATCHWORDS:	CORPORATIONS - winding up - statutory demand - application for extension of time for compliance - power to extend exists only if valid s 459G application made - no such application made
LEGISLATION CITED:	Corporations Act 2001 (Cth), ss 459F(2)(a)(i), 459G
CATEGORY:	Principal judgment
CASES CITED:	Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409
PARTIES:	Mossimo Systems International Pty Ltd Horizon Developments Sydney Pty Ltd Precise Constructions Pty Ltd Integrated Constructions Pty Ltd Caporale Buiilders Corporation Sydney Pty Ltd Elite Project Management Pty Ltd Caporale Group Pty Ltd Matrix Holdings Pty Ltd Caporale Builders Pty Ltd - Plaintiffs Deputy Commissioner of Taxation - Defendant
FILE NUMBER(S):	SC 2010/109215
COUNSEL:	Ms R Caporale in person - Plaintiffs
SOLICITORS:	Ms R Caporale in person - Plaintiffs

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

9 DECEMBER 2010

2010/109215 MOSSIMO SYSTEMS INTERNATIONAL PTY LTD & ORS v DEPUTY COMMISSIONER OF TAXATION

1 Ms Caporale has come before the court this afternoon on behalf of the seven plaintiffs referred to in my judgment of 2 December. She has done so, she says, with the knowledge of the defendant Deputy Commissioner of Taxation. She spoke to an officer of the Australian Taxation Office earlier today.

2 Ms Caporale seeks on behalf of each of the seven plaintiffs an order under s 459F(2)(a)(i) of the Corporations Act 2001 (Cth) extending the time for compliance with the statutory demand. The period of extension sought is 90 days.

3 An order can be made under s 459F(2)(a)(i) only if there has been a valid application under s 459G for an order setting aside the relevant statutory demand.

4 For reasons given at paragraphs [9] to [11] of the judgment of 2 December 2010 (Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409), that pre-condition is not satisfied in this case. It is accordingly not open to the court to make any order under s 459F(2)(a)(i).

5 The notice of motion is dismissed.

6 I should add for Ms Caporale's benefit that this in no way precludes her attempting to negotiate further with the Australian Taxation Office with a view to persuading it not to initiate winding up proceedings.

**********