Deputy Commissioner of Taxation v Robert Nitijudo Wachjo [2005] FCA 561

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Robert Nitijudo Wachjo [2005] FCA 561

BANKRUPTCY – departure of company director from Australia – substantial taxation indebtedness – non-return to Australia of debtor and members of family – reward of funds from Australia – sequestration order made

Bankruptcy Act 1966 (Cth) ss 40(1)(c) and s 43

Puels v Exelerate Funding Pty Limited [2005] FCAFC 38 referred to Edge Technology Pty Ltd (in liq) (receiver appointed) v Jen-Tse Wang [2000] FCA 1586 applied Re Andrews; Ex parte Manning (1966) 8 FLR 56 cited Barton v Deputy Federal Commissioner of Taxation (1974) 131 CLR 370 cited DEPUTY COMMISSIONER OF TAXATION v ROBERT NITIJUDO WACHJO N 1899 OF 2004

CONTI J 19 APRIL 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1899 OF 2004

BETWEEN: DEPUTY COMMISSIONER OF TAXATION

APPLICANT

AND: ROBERT NITIJUDO WACHJO

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 19 APRIL 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. A sequestration order be made against the estate of Robert Nitijudo Wachjo. 2. The applicant's costs, and reserved costs, be taxed and paid from the estate of the respondent in accordance with the Bankruptcy Act 1966 (Cth).

AND THE COURT NOTES THAT: 3. The date of the act of bankruptcy is 20 June 2004. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1899 OF 2004

BETWEEN: DEPUTY COMMISSIONER OF TAXATION

APPLICANT

AND: ROBERT NITIJUDO WACHJO

RESPONDENT

JUDGE: CONTI J

DATE: 19 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 On 20 December 2004 the Deputy Commissioner of Taxation ('the Commissioner') presented a petition to the Court for a sequestration order against the respondent Robert Nitijudo Wachjo, pursuant to s 43(1) of the Bankruptcy Act 1966 (Cth) ('the Bankruptcy Act'), in reliance upon the act of bankruptcy enumerated in paragraph 4 of the Petition: 'The following act of bankruptcy was committed by the debtor within 6 months before the date of presentation of this petition, that on and from 9 December 2002, with intent to defeat or delay his creditors, he remained out of Australia, and otherwise absented himself, in terms of section 40(1)(c)(i) and (iii) of the Bankruptcy Act, and he continues to do so.' 2 On 8 March 2005, a Registrar of this Court made an order for substituted service of the Commissioner's Petition, thereby dispensing with the need for personal service. 3 The respondent, who according to ASIC records, was born in Indonesia, was a director of a company called Universal Powerpoint Pty Ltd ('Universal') now in liquidation. The debts in question are liabilities for income tax, administrative penalties and the general interest charge incurred by the respondent, at least partly, in his capacity as director of Universal. 4 In order to make a sequestration order against the estate of the respondent, I must be satisfied of the proof of the matters contained in s 52(1) of the Bankruptcy Act, being: (i) the matters stated in the petition; (ii) service of the petition; and (iii) the fact that the debt or debts on which the petitioning creditor relies is or are still owing. In addition, s 43 of the Bankruptcy Act sets out a further requirement which establishes the Court's jurisdiction to make an order of this kind. Since the date the petition was presented to the Court, the Commissioner has filed a number of affidavits which establish the necessary requirements that I have set out above.