Travers as liquidator of Askernish Pty Ltd (in liq), in the matter of Askernish Pty Ltd (in liq) v Commissioner of Taxation

Travers, as liquidator of Askernish Pty Ltd (in liq), and the company, Askernish Pty Ltd (in liq), brought an application against the Commissioner of Taxation. The company was wound up after failing to meet a statutory demand for unpaid tax, which led to the liquidator seeking to recover payments made by the company to the Commissioner as undue preferences and voidable transactions under section 588FF of the Corporations Act 2001. The liquidator and the company sought summary judgment on the issue.

The central legal issue was whether the payments made by the company to the Commissioner were voidable as undue preferences and voidable transactions under section 588FF of the Corporations Act 2001. The court had to determine if these payments, made within six years prior to the company entering liquidation, were made while the company was insolvent and thus recoverable by the liquidator.

The court found that the company was insolvent at the time of the payments, as it was unable to pay its debts as they fell due. The payments were made within six years before the company entered liquidation, fulfilling the temporal requirement for a voidable transaction under section 588FA of the Corporations Act 2001. The court also concluded that the company was rendered insolvent as a result of the payments, satisfying the causal requirement for an undue preference under section 588FE of the Act. Given these findings, the court held that the liquidator was entitled to summary judgment on the issue that the payments were voidable.

The court ordered that the Commissioner pay to the company the sum of $493,437.63. The parties were to provide submissions on the question of interest payable within seven days if they could not agree. The Commissioner was also ordered to pay the plaintiffs' costs of the motion and the application, including any reserved costs.