Vista Commercial Construction Pty Ltd v Deputy Commissioner of Taxation [1997] FCA 1076

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 3163 of 1997 BETWEEN: VISTA COMMERCIAL CONSTRUCTION PTY LIMITED APPLICANT AND: DEPUTY COMMISSIONER OF TAXATION RESPONDENT JUDGE: BRANSON J DATE: 26 SEPTEMBER 1997 PLACE: SYDNEY REASONS FOR JUDGMENT (EX TEMPORE) HER HONOUR: There is before me on an application for review of a decision of a Registrar, an application filed 17 July 1997 pursuant to s 459G of the Corporations Law involving an application for an extension of time in which to comply with a statutory demand. The first issue which is required to be considered is whether or not the application purportedly made under s 459G is made within the time allowed by s 459G(2), namely, within 21 days after the demand was served. The demand was served by post and it is conceded that it was properly addressed and that the post was prepaid. Section 109Y of the Corporations Law in those circumstances provides that, unless the contrary is proved, the service is taken to have been effected at the time at which the letter would have been delivered in the ordinary course of post. There is evidence before me that, in the ordinary course of post, the letter would have been delivered one day after it was posted. The date of posting was 18 June 1997. - 2 - However, there is affidavit evidence before me from a secretary to the applicant deposing to the fact that on or about 27 June 1997, she collected the mail and opened an envelope containing the statutory demand. The deponent to the affidavit swearing to the opening of the envelope on or about 27 June 1997 was not required for cross-examination. Her evidence is therefore unchallenged. I therefore find, on the balance of probabilities, that service of the statutory demand was effected on 27 June 1997. The applicant's application under s 459G which was filed 17 July 1997 is therefore to be treated as an application made within 21 days after the demand was served. I have serious doubts on the question of whether the application was made in accordance with s 459 of the Corporations Law. Order 71 rule 36B of the Federal Court Rules contains a mandatory requirement that an application under s 459G(1) of the Corporations Law must be accompanied by an affidavit stating any materials facts relied upon by the applicant in support of the application and identifying the grounds upon which it is said the Court should make an order under s 459H or 459J of the Corporations Law setting aside the demand. The affidavit filed in support of the application in this case does not comply with O 71 r 36B. However, the solicitor appearing for the respondent conceded the validity of the application and I shall proceed on that basis. It is not now contended by the applicant that there is a genuine dispute between it and the respondent about the existence or the amount of the debt to which the demand relates or that the company has an offsetting claim. The application under s 459G for an order setting aside the demand must therefore be dismissed. On the application for an extension of time to comply with the demand, it is put on behalf of the applicant that if an extension of a period of only a matter of months is granted, then the likelihood is that the applicant will be able to meet the respondent's demand. In my view, a reading of the Corporations Law as a whole, and particularly - 3 - ss 459F, 459G and 459H, suggests that an extension of time ought only to be granted pursuant to s 459F(2)(a)(i) in the circumstances identified in s 459H, or possibly, s 459J. It is conceded in this case that there is no valid ground for the setting aside of the statutory demand. In those circumstances, I am not satisfied that any extension of time to comply with the demand should be granted under 459F(2)(a)(i). The period for compliance with a statutory demand, in view of the concession made on behalf of the respondent, is thus that time provided by section 459F(2)(a)(ii); that is, a period ending seven days after today being the day when the section 459G application is disposed of. The application for review of the decision of the Registrar is dismissed with costs. I certify that this and the preceding two (2) pages is a true copy of the Reasons for Judgment of the Honourable Justice Branson. Associate: Date: Mr I. Mescher, instructed by Lyon Lawfirm, appeared for the applicant. Mrs C. Fierravanti-Wells of the Australian Government Solicitor appeared for the respondent.