Taxation, Deputy Commissioner of v Prime Real Estate Australia Pty Ltd (under administration)

[2001] QSC 292

SUPREME COURT OF QUEENSLAND

[2001] QSC 292

CIVIL JURISDICTION

WILSON J

No 5670 of 2001

DEPUTY COMMISSIONER OF TAXATION                   Applicant

and

PRIME REAL ESTATE AUSTRALIA PTY LTD  
(UNDER ADMINISTRATION)(ACN 011 061 055)           Defendant

BRISBANE

..DATE 07/08/2001

ORDER

HER HONOUR:  This is an application for the winding-up in insolvency of Prime Real Estate Australia Pty Ltd.  The basis of the alleged insolvency is non-compliance with a statutory demand issued by the applicant, The Deputy Commissioner of Taxation, in the sum of $31,054.63.   Material before me shows that the company has not paid any tax since at least February 1998. 

On 23 July 2001 Messrs Terry Grant Vanderveld and Paul Desmond Sweeney were appointed administrators pursuant to section 436A of The Corporations Law. That was, in fact, the day before the winding-up application was scheduled to be heard by the Court.

The winding-up application is back before the Court today and the administrators seek an adjournment pursuant to section 440A(2) which is in the following terms:

"The Court is to adjourn the hearing of an application for an order to wind-up a company if the company is under administration and the Court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound-up."

As its name implies, the company's business is a real estate business.  It has been involved in the sale of properties to Asian purchasers on the Gold Coast.  The administrators have received a report as to affairs from one of the directors, Mr Tompkins. 

This shows creditors totalling $638,394.59 of which $514,399.00 is claimed by related parties (i.e. a related company and Mr Tompkins himself).

The report as to affairs shows assets of $40,000 being cash recently received as commissions and unrelated expenses and $2,000, the value of office furniture.

A meeting of creditors, in accordance with section 436E, was called for 30 July 2001.  No creditors attended and it was adjourned to 6 August 2001.  Again no creditors attended and the meeting lapsed (see regulation 5.6.16(4) under The Corporations Law).  This may have been because not all of the creditors had received notice or proper notice of the meeting.

Pursuant to section 439A there is to be a further meeting of creditors on or before 17 August 2001 to consider the administrator's detailed report of the business, property, affairs and financial circumstances of the company and any proposal for its future. 

The material indicates that there is work in progress which may soon result in further commission and unrelated expenses of $20,000.  This is dependent upon the personal efforts of the director, Mr Tompkins.  There is also the possibility if a Deed of Company Arrangement is entered into that part of the debts to the related creditors will be waived.  That possibility is not open in the event of a winding-up.

I have come to the conclusion that it would be in the interests of the creditors as a whole to allow a short adjournment to see whether these matters come to fruition.  I would propose an adjournment until the next business day after 17 August.

It is difficult to see what harm this would cause to the creditors as a whole or to the particular creditor who has applied for winding-up, namely the Deputy Commissioner.  In the circumstances I adjourn the application for winding-up to 20 August 2001 or further earlier order of the Court. 

...

HER HONOUR:  Costs reserved.

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