Pace v Antlers Pty Ltd (In Liq)

[1998] FCA 973

CATEGORY: NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 131 of 1994

BETWEEN:	CHARLIE PACE & ANOR Applicant
AND:	ANTLERS PTY LIMITED (ACN 000 900 989) Respondent

JUDGE:	LINDGREN J
DATE:	7 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(supplementary reasons – ex tempore)

Background

I published reasons for judgment on 12 January 1998.  I take them as read, and will use here the abbreviations I used there.   On that date I stood over the proceeding to 16 February 1998 for the making of orders.  In view of the earlier litigious saga between the parties it could not reasonably have been expected that the parties would be able to agree on the orders to be made. 

There have been numerous directions and substantive hearings on and since 16 February.  On 31 March 1998 I made the following orders:

“THE COURT ORDERS THAT

1.        The following questions be determined separately from any other question in the proceeding:

“1.       Whether Millar, as Liquidator, ought to have paid the income tax assessed on the company, Antlers Pty Limited (Receiver and Manager Appointed and in Liquidation), out of funds on hand, on some date earlier than May 1996 (and, if so, what date) by reason of:

1.1      the financial position of his liquidation on and after the date of his appointment; and

1.2      notwithstanding the circumstances of the liquidation and in particular, the receivership of the assets of the Company?

2.        If the answer to 1 is ‘no’, should the Liquidator have applied to the Court for directions before February 1996 for directions to permit the payment of the said assessment, notwithstanding the financial position of the company and, if so, would the Court necessarily have directed payment of the sum assessed at a time earlier than it was in fact paid?

3.        If the tax assessed ought to have been paid earlier than it was in fact paid, what loss or damage, if any, did the company incur, having regard to:

3.1      the additional tax incurred in fact;

3.2      the additional tax incurred before the appointment of Millar as liquidator;

3.3      interest earned by the company on monies not paid;

3.4      the prospect that the additional tax may be waived, in whole or in part, by the Commissioner;

3.5      the costs of the conduct of any application for directions or other costs attendant on making the payment?

4.        If the said amount assessed has been paid to the Commissioner of Taxation, would there have been any earlier determination of the liquidation of the company than in fact occurred?

5.        If the answer to 4 is ‘yes’, would there have been any change, by way of reduction in the aggregate of costs, charges and expenses of the liquidation than were in fact charged by or incurred by Millar in his capacity as Liquidator and as Receiver having regard to the work performed, and the directions of the court?

6.        Has the company suffered any loss if…