Deputy Commissioner of Taxation, in the matter of Manta's on the Beach Pty Ltd v Manta's on the Beach Pty Ltd [2012] FCA 417

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation, in the matter of Manta's on the Beach Pty Ltd v Manta's on the Beach Pty Ltd [2012] FCA 417 Citation: Deputy Commissioner of Taxation, in the matter of Manta's on the Beach Pty Ltd v Manta's on the Beach Pty Ltd [2012] FCA 417

Parties: DEPUTY COMMISSIONER OF TAXATION v MANTA'S ON THE BEACH PTY LTD ACN 141 500 209

File number: QUD 575 of 2011

Judge: LOGAN J

Date of judgment: 24 April 2012

Catchwords: CORPORATIONS – winding up – statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) – statutory demand sent by Commissioner though never received at company's registered office – held non–compliance with s 109X of the Corporations Act 2001 (Cth) EVIDENCE – presumptions pursuant to s 160 and s 163 of the Evidence Act 1995 (Cth) and s 29 of the Acts Interpretation Act 1901 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – only generic evidence led of postal delivery times to support presumption – express evidence of non–receipt – held presumption rebutted CORPORATIONS – solvency and insolvency – whether company is insolvent pursuant to s 95A of the Corporations Act 2001 (Cth) – no evidence led by Commissioner as to resources company may command in a reasonable time to meet debts already due and such as may fall due – held failure to prove insolvency

Legislation: Acts Interpretation Act 1901 (Cth) s 29 Corporations Act 2001 (Cth) ss 95A, 109X, 459C, 459F, 459P Evidence Act 1995 (Cth) ss 160, 163