Deputy Commissioner of Taxation v Gail Freeman & Co Pty Ltd [2007] FCA 1003

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Gail Freeman & Co Pty Ltd [2007] FCA 1003 CORPORATIONS – winding up – winding up in insolvency – statutory demand – failure to comply with statutory demand – leave sought to rely on grounds which could have been raised in an application to set aside statutory demand – statutory demand based on 2005 assessments – those assessments subsequently amended – fresh assessment unpaid and company insolvent as at hearing Held: Leave to raise grounds denied, application for winding up in insolvency granted. No basis for conclusion plaintiff could not rely for different purposes on the earlier and the later assessments, nor was there ground for discretionary refusal to make winding up order. Corporations Act 2001 (Cth) Part 5.4 Chief Commissioner of Stamp Duties v Paliflex Pty Ltd (1999) 17 ACLC 467 cited D.A.G. International Pty Ltd v D.A.G. International Group Pty Ltd [2005] NSWSC 1036 referred to David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 referred to FP Leonard Advertising v KD Travel Service Pty Ltd (1993) 11 ACLC 1,203 referred to NT Resorts Pty Ltd v Deputy Commissioner of Taxation (1998) 153 ALR 359 applied Re Presha Engineering (Aust) Pty Ltd (1983) 1 ACLC 675 cited DEPUTY COMMISSIONER OF TAXATION v GAIL FREEMAN & CO PTY LTD ACN 008 653 683 ACD 28 OF 2006

MADGWICK J

5 JULY 2007

SYDNEY (HEARD AT CANBERRA) IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 28 OF 2006

BETWEEN: DEPUTY COMMISSIONER OF TAXATION

Plaintiff

AND: GAIL FREEMAN & CO PTY LTD ACN 008 653 683

Defendant

JUDGE: MADGWICK J DATE OF ORDER: 5 JULY 2007

WHERE MADE: SYDNEY (HEARD AT CANBERRA)

THE COURT ORDERS THAT:

1. The defendant be wound up in insolvency. 2. Henry Kazar, of Sims Partners Pty Ltd, Suite 5, 32 Thesiger Court, Deakin, be appointed liquidator of the defendant. 3. The taxed costs incurred by the plaintiff in this proceeding be reimbursed to it out of the property of the defendant in accordance with ss 466(2) and 556(1)(b) of the Corporations Act 2001 (Cth). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.