| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2023 03515
IN THE MATTER of NEERIM INVESTMENTS (VIC) PTY LTD (ACN 602 961 884)
BETWEEN:
| NEERIM INVESTMENTS (VIC) PTY LTD (ACN 602 961 884) | Plaintiff |
| v | |
| DEPUTY COMMISSIONER OF TAXATION | Defendant |
S ECI 2023 03516
IN THE MATTER of SUKKAR HOLDINGS PTY LTD (ACN 601 916 965)
BETWEEN:
| SUKKAR HOLDINGS PTY LTD (ACN 601 916 965) | Plaintiff |
| - and - | |
| DEPUTY COMMISSIONER OF TAXATION | Defendant |
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JUDGE: | Barrett AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 March 2024 |
DATE OF JUDGMENT: | 13 June 2024 |
CASE MAY BE CITED AS: | Re Neerim Investments; Re Sukkar Holdings |
MEDIUM NEUTRAL CITATION: | [2024] VSC 313 |
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CORPORATIONS – Corporations Act 2001 (Cth) – Pt 5.4 – Insolvency – Statutory demands – ss 459G and 459J of the Act – Plaintiffs involved in property development venture with other parties pursuant to written agreement – Written agreement includes clause appointing an accountant who registered the venture as a partnership for tax purposes – Annual GST returns lodged for FY2015 to FY2019 with the ATO on basis the venture is a partnership – plaintiffs’ personal tax returns lodged for same periods on basis the venture is a partnership – ATO issued statutory demands alleging debts based on self-assessments by GST returns – ATO relying on prima facie evidence and deeming provisions in Tax Administration Act 1953 (Cth) (‘TAA’) ss 8AAZG, 8AAZI, 8AAZJ and ss 155-5 and 155-15 of Schedule 1 of the TAA – plaintiffs submit the provisions do not apply because accountants were not authorised to treat the venture as a partnership and should have treated it as a trust and therefore the documents lodged do not constitute self-assessments – Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 considered. Held: plaintiffs failed to establish a genuine dispute on the facts. Held: the principles in Broadbeach apply equally to s 459J of the Act and for the same reasons the applications are dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Marlow-Weir | Madgwicks Lawyers |
| For the Defendant | Mr M A J McKillop | K&L Gates |
S ECI 2023 03516
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Marlow-Weir | Madgwicks Lawyers |
| For the Defendant | Mr M A J McKillop | K&L Gates |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background......................................................................................................................................... 2
Consideration of the general principles under s 459G of the Act.......................................... 14
Consideration of the general principles under s 459J of the Act............................................ 17
HIS HONOUR:
Introduction
Two proceedings are listed before me each of which raises the same issues on substantially the same factual background. The first is Neerim Investments (Vic) Pty Ltd (ACN 602 961 884) (S ECI 2023 03515) (‘Neerim’) the second is Sukkar Holdings Pty Ltd (Vic) (ACN 601 916 965) (S ECI 2023 03516) (‘Sukkar’). An order has been made that they be heard together having regard to the common factual background. These reasons relate to both…
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- AGLC
- Re Neerim Investments [2024] VSC 313
- Case
- [2024] VSC 313
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide included whether the accountant was authorised to treat the venture as a partnership and the applicability of the deeming provisions in the Tax Administration Act 1953 (Cth) to the statutory demands issued by the ATO. The court needed to determine if the plaintiffs had established a genuine dispute on the facts regarding the venture's tax status and the validity of the ATO's reliance on the self-assessments. The court considered the case of Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 in its reasoning.
The court found that the plaintiffs had failed to establish a genuine dispute on the facts. It held that the principles applied in Broadbeach applied equally to section 459J of the Corporations Act 2001 (Cth), and for the same reasons, the applications were dismissed. The court determined that the ATO was entitled to rely on the self-assessments made in the GST returns and that the plaintiffs' arguments regarding the venture's tax status did not constitute a genuine dispute. Consequently, the statutory demands issued by the ATO were valid, and the plaintiffs' applications were dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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