McVeigh, in the matter of J.A.G. Plastering & Carpentry Pty Ltd (in liq) v Commissioner of Taxation [2004] FCA 653

FEDERAL COURT OF AUSTRALIA

McVeigh, in the matter of J.A.G. Plastering & Carpentry Pty Ltd (in liq) v Commissioner of Taxation [2004] FCA 653

CORPORATIONS – winding up – liquidator seeking to recover unfair preferences – records of company – hearsay – presumption that liquidator obtained company's financial records

Bankruptcy Act 1924 (Cth) s 95 Corporations Act 2001 (Cth)ss 558FE(1), 588FA(1), 588FE(2), 588FGA Evidence Act 1995 (Cth) Part 2.2 Action Waste Collections Pty. Ltd. (In Liquidation), Re; Crawford v O'Brien [1981] VR 691 followed Calzaturificio Zenith Pty. Ltd. (In Liquidation) v N.S.W Leather & Trading Co. Pty. Ltd. [1970] VR 605 cited Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 referred to Sandell v Porter (1966) 115 CLR 666 applied Walsh v Natra Pty Ltd [2000] 1 VR 523 cited

IN THE MATTER OF J.A.G. PLASTERING & CARPENTRY PTY LTD

(in liquidation)

DEAN ROYSTON McVEIGH AS LIQUIDATOR OF J.A.G. PLASTERING & CARPENTRY PTY LTD (IN LIQUIDATION) v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA V 191 of 2004 FINKELSTEIN J 21 MAY 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 191 of 2004

IN THE MATTER OF J.A.G. PLASTERING & CARPENTRY PTY LTD

(in liquidation)

BETWEEN: DEAN ROYSTON McVEIGH AS LIQUIDATOR OF J.A.G. PLASTERING & CARPENTRY PTY LTD (IN LIQUIDATION)

Plaintiff

AND: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Defendant

AND BETWEEN: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Cross-Claimant AND: JOHN BRUNON PRUSZAK and

GINO BINDA

Cross-Defendants

JUDGE: FINKELSTEIN J

DATE OF ORDER: 21 MAY 2004

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT the payments made by J.A.G. Plastering & Carpentry Pty Ltd (in liquidation) to the defendant between 26 February 2003 and 9 May 2003 totalling $180,000 were unfair preferences pursuant to s 588FA of the Corporations Act 2001 (Cth) and are void against the plaintiff pursuant to s 588FE of the Corporations Act. THE COURT ORDERS THAT: 1. The defendant pay the plaintiff the sum of $180,000. 2. The cross respondents pay the plaintiff's costs of the day. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.