FEDERAL COURT OF AUSTRALIA Deputy Commissioner of Taxation v Arizcorp Pty Ltd [2008] FCA 212 INSOLVENCY – consideration of an application for an order that the defendant be wound up in insolvency under the provisions of the Corporations Act 2001 (Cth). DEPUTY COMMISSIONER OF TAXATION v ARIZCORP PTY LTD ACN 078 186 722 QUD239 OF 2007 GREENWOOD J 29 FEBRUARY 2008 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD239 OF 2007 BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff AND: ARIZCORP PTY LTD ACN 078 186 722 Defendant JUDGE: GREENWOOD J DATE OF ORDER: 29 february 2008 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Arizcorp Pty Ltd ACN 078 186 722 be wound up in insolvency, under the provisions of the Corporations Act 2001 (Cth). 2. William John Fletcher be appointed Liquidator for the purposes of the said winding up. 3. The Plaintiff's costs of and incidental to the application be fixed in the sum of $1,110.80 and be reimbursed as a priority out of the funds in the liquidation. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD239 OF 2007 BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff AND: ARIZCORP PTY LTD ACN 078 186 722 Defendant JUDGE: GREENWOOD J DATE: 29 FEBRUARY 2008 PLACE: BRISBANE EX TEMPORE REASONS FOR JUDGMENT 1 This is an application for the winding up of Arizcorp Pty Ltd. There has been no appearance on behalf of the defendant this morning on the return date for the application. The matter was called on at approximately 10.15 am and no appearance was recorded. The matter was then stood down until 11.00 am and called again. There has been no appearance upon the matter being called for the second time. 2 The plaintiff has provided a list of materials which are read on the application, and has provided a chronology and written submissions in relation to the merits in support of the making of a winding up order. Prior to the matter being called on this morning the defendant had provided submissions through lawyers Groom & Lavers and in those submissions the proposition was being advanced that there are special circumstances which would warrant the application being adjourned. 3 Without descending into all the detail of the matter, there has been a history of negotiations between representatives of the defendant and financiers, including Macquarie Bank, and others, to raise money to enable the plaintiff's claim to be discharged. In the course of those matters, a cheque was drawn and made payable to the Commissioner, which upon presentation was dishonoured. That payment apparently was made in the context of anticipated fruitful refinancing arrangements. 4 Upon the failure of those arrangements and the dishonouring of the cheque, the defendant apparently has engaged in other discussions with a view to securing a sale of an asset described as its "rent roll". The submissions set out five matters which are said to constitute special circumstances which would warrant the matter being adjourned. Two things need to be said about that. The first is that the defendant has not appeared to articulate the merits of those matters. Secondly, I am not satisfied, in any event, that they constitute special circumstances, particularly having regard to the payment to the Commissioner of a cheque in discharge of a liability which has been dishonoured upon presentation. Accordingly I propose to make an order that the defendant be wound up. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 29 February 2008 Solicitor for the Plaintiff: Australian Taxation Office Solicitor for the Defendant: The Defendant did not appear Date of Hearing: 29 February 2008 Date of Judgment: 29 February 2008