Casatex Australia P/L (In Liq) v. Deputy Commissioner of Taxation [1994] FCA 1088

ORIGIv

JUDGMENT No. ....!0.3.8 » 94

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) NG 3243 of 1993 ) )

GENERAL DIVISION

IN_THE MATTER OF: CASATEX AUSTRALIA PTY LIMITED (In Liq) (ACN 002 271 427)

CASATEX AUSTRALIA PTY LIM. In Li

Applicant DEPUTY COMMISSIONER OF TAXATION

Respondent

Coram: Davies J. Date: 9 December 1994 , Place: Sydney RECE| VED

T9MAY 1995

FEDERAL COURT OF

AUSTRALIA PRINCIPAL REGISTRY

REASONS FOR JUDGMENT

This 1s an application brought by the hquidator of Casatex Austraha Pty Limited ("Casatex") against the Deputy Commissioner of Taxation. The liquidator seeks to recover sales tax amounting to $170,336.95 paid to the Deputy Commissioner from 9 December 1991 to 9 April 1992, Casatex went mto liquidation on 13 August

1992.

sje

(su. -2-

Section 565 of the Corporations Law provides, iter alia:-

"(1) A settlement, a conveyance or transfer of property, a charge on property, a payment made, or an obligation incurred, before the commencement of Part 5.7B, by a company that, if 1t had been made or incurred by a natural person, would, in the event of his or her becoming a bankrupt, be void as against the trustee in the bankruptcy, 1s, in the event of the company being would up, void as against the liquidator."

Section 122 of the Bankruptcy Act 1966 (Cth) provides, inter alia:-

"122(1) A conveyance or transfer of property, a charge on property, or a payment made, or an obligation incurred, by a person who 1s unable to pay his debts as they become due from his own moncy (in this section referred to as 'the debtor'), in favour of a creditor, having the effect of giving that creditor a preference, pmority or advantage over other creditors, bemg a conveyance, transfer, charge, Payment. or - obligation executed made or incurred: ie

(a) within 6 months before the presentation of a petition on which, or by virtue of the presentation of which, the debtor becomes a bankrupt; or