Sugardaddy Productions Pty Ltd and Commissioner of Taxation (Practice and procedure)

[2025] ARTA 880

Sugardaddy Productions Pty Ltd and Commissioner of Taxation (Practice and procedure) [2025] ARTA 880 (2 July 2025)

Applicant/s:  Sugardaddy Productions Pty Ltd

Respondent:  Commissioner of Taxation

Tribunal Number:                 2023/3230

Tribunal:General Member R Smith  

Place:Adelaide

Date:2 July 2025

Decision:The application was dismissed at 5pm on 24 April 2025 pursuant to a direction of the Tribunal dated 27 March 2025.

........................................................................

General Member R Smith

Catchwords

TAXATION – deregistration of applicant during the review – effect of self-executing order – application dismissed – reinstatement – dismissal following deregistration – application dismissed

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Cases

Goldie v Minister for Immigration and Multicultural Affairs [2002] FCA 367

Statement of Reasons

1. The Applicant (also referred to in these reasons as the Company) applied for a review of the objection decision of the Respondent (also referred to in these reasons as the Commissioner) to:

   (a)cancel the Applicant’s registration for good and services tax (GST) under section 25-55(2) of the A New Tax System (Goods and Services Tax) Act 1999(Cth);

   (b)cancel the Applicant’s Australian Business Number (ABN) under section 18 of the A New Tax System (Australian Business Number) Act 1999 (Cth); and

   (c)amend assessments of net amount arising from the denial of input tax credits for the tax periods 1 April 2021 to 30 June 2021, 1 July 2021 to 30 September 2021 and 1 October 2021 to 31 December 2021.

2. Information from the Australian Securities & Investments Commission (ASIC) register shows as follows:

   ·the Company was incorporated on 11 March 2021;

   ·Harsimranjit Mrar was a director and shareholder between 11 March 2021 and 28 January 2024; and

   ·Rajkaren Singh Duggal was a director and shareholder between 11 March 2021 and 22 January 2022; and

3. On 19 November 2024, the Commissioner advised the Tribunal by letter that it had recently become aware the Applicant had been deregistered. The Respondent requested the matter be listed for a directions hearing to determine the appropriate next steps.

4. On 22 November 2024, the Tribunal sent the following communication to the parties:

   Dear Parties.

   
   
   

   The application for review in the above matter filed on 5 May 2023 of the Respondent's objection decision dated 7 March 2023 is listed for hearing on Thursday 28 November 2025.

   
   
   

   The Tribunal has recently been advised that the Applicant Company was deregistered by the Australian Securities and Investment Commission on 28 January 2024 and no steps have been taken for it to be reinstated. In accordance with section 601AD (1) of the Corporations Act 2001 (Cth), the Applicant company ceased to exist upon deregistration.

   
   
   

   In circumstances where the Applicant company is deregistered and therefore ceases to exist, it cannot continue with the substantive application.

   
   
   

   Section 84 of the Administrative Review Act 2004 (Cth) deals with this scenario. If a corporate applicant ceases to exist, and the Tribunal considers that the applicant cannot continue with the substantive application, certain persons may apply to continue with the substantive application. The persons specified include (but are not limited to) a person whose interests are affected by the decision.

   
   
   

   If such an application is made, the Tribunal may give such orders that appear to be appropriate in the circumstances, either on request or on its own initiative. This may be an order that the application should continue, with the person who has requested continuation being substituted as the applicant, and any other orders as are necessary to progress the matter.

   
   
   

   If the Tribunal considers there is no relevant person who can continue with the substantive application, or no application to continue with the substantive application is made within three months after the Tribunal becomes aware of the deregistration, then the Tribunal may dismiss the substantive application.

   
   
   

   The Tribunal would like to list this matter for an urgent directions hearing early next week to discuss the next steps and whether it is appropriate to vacate the current hearing.

   
   
   

   Given the proximity to the hearing, the parties are invited to provide - by no later than 2PM ACDT Monday 25 November 2024 - any preliminary views prior to confirmation of the listing for directions together with their availability.

5. On 25 November 2024, the Commissioner filed submissions in support of an application to dismiss the proceedings.

6. The matter was listed for directions on 26 November 2023. Rajkaren Singh Duggal (Mr Duggal), a former director of the Company, appeared on behalf of the Applicant. After hearing submissions from both parties, the Tribunal adjourned the proceeding to 22 January 2025 to allow time for Mr Duggal to take steps to reinstate the Company.

7. On 21 January 2025, the Respondent advised the Tribunal it intended to press its application for the proceeding to be dismissed. On the same date, Mr Duggal emailed the Tribunal requesting an adjournment as he was unwell and unable to attend the hearing.

8. On 22 January 2025, the Tribunal sent the following communication to the parties

   Dear Parties,

   The proceedings were listed for a directions hearing today at 10am EST.

   The Applicant requested an adjournment of the hearing at short notice due to illness. We understand the Respondent was not included in this request and remind the parties that all substantive communications with the Tribunal must include the other party unless there is a legal reason for not doing so.

   The Tribunal has agreed to vacate the hearing and relist the matter on Friday 28 February 2025 at 10am EST given the circumstances of the Applicant’s representative.

   The parties will recall that that the Applicant Company was deregistered by the Australian Securities and Investment Commission on 28 January 2024. The matter was adjourned on the last occasion to allow time for the director of the Applicant to take steps to reinstate the Company. This has not occurred.

   In accordance with section 601AD (1) of the Corporations Act 2001 (Cth), the Applicant Company ceased to exist upon deregistration. In circumstances where the Applicant Company is deregistered and therefore does not exist it cannot continue with the substantive application.

   Section 84 of the Administrative Review Act 2004 (Cth) provides that if a corporate applicant ceases to exist and the Tribunal considers that the application cannot continue with the substantive application because of this event, then certain persons may apply to continue with the application. If the Tribunal considers there is no relevant person who can continue with the substantive application, or no application to continue the substantive application is made within three months of the Tribunal becoming aware of the deregistration, then the Tribunal may dismiss the substantive application.

   The Tribunal became aware of the deregistration on 22 November 2024.

   If Applicant Company is still deregistered and no application has been made by another person to continue with the substantive application at the next hearing, we confirm that the Tribunal may dismiss the substantive application at that time without further notice.  

9. A directions hearing was convened on 28 February 2025. Mr Duggal appeared on behalf of the Company. He advised the Tribunal that he had lodged an application with ASIC in mid- January 2025 seeking the reinstatement of the Company.  He confirmed he had not received any correspondence in response from ASIC and he hadn’t contacted ASIC to enquire as to the status of the application. Noting the Company was still deregistered and there was no evidence as to the steps taken in respect of the reregistration, the Respondent pressed their dismissal application.

10. The Tribunal agreed to a further adjournment as the Applicant was not legally represented, Mr Duggal had advised the Tribunal that some steps had been taken in respect of reregistration and it was only just over three months since the deregistration had been brought the Tribunal’s attention.  The Tribunal stressed to Mr Duggal that unless the Company was registered, or evidence filed as to the progression of the reinstatement application that the proceedings may be dismissed on the next occasion. A direction was made that on or before 17 March 2025, the Applicant’s representative was to provide the Tribunal and the Respondent any evidence which demonstrates the steps taken to reregister the Company.

11. On 17 March 2025, Mr Duggal contacted the Tribunal and advised as follows:

    I have just arrived in Australia today late evening and i have communicated with Asic while i was overseas 

    They have mentioned they did not receive my old application not sure the reason.

    I am submitting them new application tomorrow through express post again.

    I will send you the tracking details once I send them form.

12. On 27 March 2025, Mr Duggal contacted the Tribunal to request and adjournment of the directions hearing scheduled for 28 March 2025. In his email he stated:

    I will be in flight I had a very serious family emergency

    I booked my flights late last night to travel overseas today

13. On 27 March 2025, the Tribunal vacated the hearing, and sent the following communication to the parties:

    Dear Parties,

    The proceedings were listed for a directions hearing on 28 March 2025 at 10am ACDT.

    The Applicant requested an adjournment of the hearing at short notice due to urgent family circumstances requiring overseas travel.

    The Tribunal has agreed to vacate the hearing given the circumstances of the Applicant’s representative.

    The parties will recall that that the Applicant Company was deregistered by the Australian Securities and Investment Commission on 28 January 2024. The proceedings have been adjourned on three occasions to allow time for the director of the Applicant to take steps to reinstate the Company. This has not occurred.

    In accordance with section 601AD (1) of the Corporations Act 2001 (Cth), the Applicant Company ceased to exist upon deregistration. In circumstances where the Applicant Company is deregistered and therefore does not exist it cannot continue with the substantive application.

    Section 84 of the Administrative Review Act 2004 (Cth) provides that if a corporate applicant ceases to exist and the Tribunal considers that the application cannot continue with the substantive application because of this event, then certain persons may apply to continue with the application. If the Tribunal considers there is no relevant person who can continue with the substantive application, or no application to continue the substantive application is made within three months of the Tribunal becoming aware of the deregistration, then the Tribunal may dismiss the substantive application.

    The Tribunal became aware of the deregistration on 22 November 2024.

    The Tribunal has made a direction which is attached. The parties will observe that unless evidence is filed on or before 24 April 2025 that the Applicant company has been reinstated, the proceedings will be dismissed. If the Applicant is unable to comply with the timeframe stated in the direction, they must make a request to the Tribunal for an extension in time or a variation of the direction well before the date by which they required to comply with the direction.

14. No evidence was filed by the Applicant in respect of the reinstatement of the Company, nor was there an application to extend or vary the direction made on 27 March 2025 on or before 24 April 2025.

15. On 28 April 2025, Mr Duggal contacted the Tribunal as follows:

    Regarding the company reinstatement i have applied to Asic on 31st March 2025.

    To be eligible to reinstate i have to send them form 581 and there processing time is 28 business days

    As mentioned in their website and due to all the Public holidays this month i haven’t received any communication from them.

    Can I please request for 1 week extension for the decision.

    Once they review the application i will update you all straight away.

16. There has been no further communication to the Tribunal from Mr Duggal on behalf of the Applicant since that email.

17. The Tribunal listed the matter for a further directions hearing. A copy of the listing notice and Microsoft Teams details were sent to Mr Duggal on 16 June 2025. A pre-hearing check email was also sent by the Tribunal on 18 June 2025.  There was no response to either email.

18. When the directions hearing on 18 June 2025 commenced, there was no attendance by Mr Duggal. The Tribunal tried to call Mr Duggal on his mobile phone, but it went straight to a message indicating the message bank was full.

19. The directions hearing proceeded in the absence of Mr Duggal. The Respondent submitted the matter had been dismissed by the operation of the Tribunal direction on 27 March 2025, but that should that not be the case it was appropriate for the matter to be dismissed under s 84 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) as the Company was still deregistered, there was no evidence before the Tribunal as to what, if any, steps have been taken to reinstate the Company and the Company has had several months to address the issue.

20. The Tribunal indicated to the Respondent at the directions hearing that the matter stood dismissed following the directions of the Tribunal dated 27 March 2025 and reinstatement was not appropriate in the circumstances. Further, should the Tribunal be wrong about the operation of the self-executing order, it is appropriate for the matter to be dismissed under s 84 of the ART Act. These are the reasons for that decision.

21. Section 9 of the ART Act sets out the Tribunal’s objectives which includes that applications to the Tribunal are resolved as quickly and with as little formality and expense and the proper consideration of the matters before the Tribunal permits. In order to achieve this objective, it is important for the Tribunal to actively manage the progress of cases.

22. Section 56 of the ART Act requires that parties and their representatives conduct proceedings before the Tribunal in a manner that supports the Tribunal to achieve its objectives. This necessarily includes complying with the Tribunal’s directions.

23. No evidence was filed on or before the 27 March 2025 directed to the status of the application to reinstate the Company. There was also no request from Mr Duggal to extend the time provided to do so or otherwise vary the directions. The proceedings were dismissed as of 5pm on 28 April 2025 as a consequence of the self -executing order.

24. Section 102 of the ART Act prescribes the conditions under which an application may be reinstated. Pursuant to s102(2), if the Tribunal considers the application was dismissed in error, it may on its own initiative reinstate. If it is more than 28 days after the dismissal, this is also qualified at s 102(4) by the requirement that the Tribunal not reinstate unless it is satisfied that special circumstances justify reinstating.

25. Additionally, under s 102(5) a party (including the applicant) may apply to the Tribunal for reinstatement of the application on the grounds of error within 28 days or in such other timeframes as the Tribunal allows (where it is satisfied of special circumstances).

26. There is no textual limitation on what might constitute an error, in the sense it need not be an error on the part of the Tribunal.[1] However, the error must relate to the decision to dismiss.

    [1]  Goldie v Minister for Immigration and Multicultural Affairs [2002] FCA 367 at [27]

27. Mr Duggal in his email to the Tribunal on 28 April 2025, stated that he had filed an application to reinstate the Company on 31 March 2025. No corroborating evidence of this action (such as a copy of the application, tracking details or confirmation of payment of the fee) was provided. The ASIC records confirm the Company remains deregistered.  It follows that, at least based on the current information before the Tribunal, there is no error in the dismissal that might constitute grounds to reinstate.

28. If the Tribunal were in any doubt as to the efficacy of the self -executing order, then it is appropriate for the matter to be dismissed under s 84 of the ART Act.

29. Information from the Australian Securities & Investments Commission (ASIC) register shows that the Company was deregistered on 28 January 2024. The Tribunal became aware of this information on 22 November 2025. There is no evidence before the Tribunal that the Company’s registration has been reinstated with ASIC since that time. The ASIC records confirm the Company is deregistered.

30. Generally speaking, a company that is deregistered ceases to exist as a legal entity.[2]  As an application for review of this type may only be made by the relevant sponsor or nominator, the effect of deregistration is that the Applicant cannot continue with the substantive application.[3]

    [2] 601AD (1) of the Corporations Act 2001 (Cth)

    [3] s 84(1)(b) of the ART Act.

31. The Tribunal finds that The Applicant has been deregistered and that it has ceased to exist as a legal entity. The Tribunal is satisfied that there is no person mentioned in s 84(2) who can continue with the review application. Should there be any doubt as to the efficacy of the self-executing order (and therefore the dismissal on 24 April 2025), it would be appropriate to dismiss the application for review pursuant to s 84(4) of the ART Act.

    DECISION

32. The application was dismissed at 5pm on 24 April 2025 pursuant to a direction of the Tribunal dated 27 March 2025.

Date(s) of hearing:	19 June 2025
Applicant:	No appearance
Solicitor for the Respondent:	Ms A Sasidharan Litigation and Legal Services, ATO