Deputy Commissioner of Taxation v TMPL Pty Ltd (subject to a Deed of Company Arrangement) (No 3) [2011] FCA 1403

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v TMPL Pty Ltd (subject to a Deed of Company Arrangement) (No 3) [2011] FCA 1403 Citation: Deputy Commissioner of Taxation v TMPL Pty Ltd (subject to a Deed of Company Arrangement) (No 3) [2011] FCA 1403

Parties: DEPUTY COMMISSIONER OF TAXATION v TMPL PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 064 227 505, ANTONY DE VRIES and DAVID SOLOMONS

File number: NSD 1034 of 2009

Judge: PERRAM J

Date of judgment: 8 December 2011

Catchwords: CORPORATIONS – External administration – deed of company arrangement – Court's powers to terminate – application by Deputy Commissioner of Taxation to terminate deed of company arrangement – matters to be considered – whether report to creditors was misleading – whether report to creditors had material omission – whether liquidation scrutiny warranted – orders which may be made – Corporations Act 2001 (Cth) ss 445D, 447A

Legislation: Competition and Consumer Act 2010 (Cth) s 87 Corporations Act 2001 (Cth) ss 436A, 439A, 439C, 440D, 440F, 444A, 444D, 444H, 445D, 446B, 447A, 513A, 513C, 588FC, 588FE, 588FJ, 600B Income Tax Assessment Act 1936 (Cth) ss 82KL, 124K, 124L, 124M, 124UA, Part III Division 10B, Part IVA Income Tax Assessment Act 1997 (Cth) Taxation Administration Act 1953 (Cth) s 14ZZM, Sch 1 Corporations Regulations 2001 (Cth) regs 5.3A.07, 5.6.19, 5.6.21

Cases cited: Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510 cited Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 cited Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (2001) 37 ACSR 394 cited Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 cited Deputy Commissioner of Taxation v Pddam Pty Ltd (1996) 19 ACSR 498 cited Deputy Commissioner of Taxation v Portinex Pty Ltd (2000) 176 FLR 453 cited Federal Commissioner of Taxation v H (2010) 188 FCR 440 cited Federal Commissioner of Taxation v Wellnora Pty Ltd (2007) 163 FCR 232 cited Fleet Broadband Holdings Pty Ltd v Paradox Digital Pty Ltd (2005) 228 ALR 598 cited Hagenvale Pty Ltd v Depela Pty Ltd (1995) 17 ACSR 139 cited Lehman Brothers Holdings Inc v City of Swan (2010) 240 CLR 509 cited Mondello Farms Pty Ltd v Annatom Pty Ltd (subject to a deed of company arrangement) (2007) 64 ACSR 91 cited Re Cufari; Ex parte Commissioner of Taxation v Huppatz (1992) 34 FCR 544 cited Wily v St George Partnership Banking Ltd (1999) 84 FLR 423 cited Young v Sherman (2002) 170 FLR 86 cited