Stone (Liquidator), in the matter of RIC Admin Pty Ltd (in liq) v Mandalinic [2022] FCA 1346

FEDERAL COURT OF AUSTRALIA

Stone (Liquidator), in the matter of RIC Admin Pty Ltd (in liq) v Mandalinic [2022] FCA 1346 File number(s): NSD 988 of 2020

Judgment of: HALLEY J

Date of judgment: 11 November 2022

Catchwords: CORPORATIONS – interlocutory application filed by defendant seeking approval nunc pro tunc pursuant to s 198G(3)(b) of the Corporations Act 2001 (Cth) (Corporations Act) to file affidavit (Revocation Affidavit) in separate proceedings – whether filing of Revocation Affidavit had effect of revoking the debt relied upon by plaintiffs to establish insolvent trading claim in this proceeding – where Revocation Affidavit was filed in proceeding commenced by the Deputy Commissioner of Taxation (Commissioner) in the Supreme Court of New South Wales to recover tax-related liabilities of defendant, including director penalties for which he was liable under Division 269 of Schedule 1 to the Taxation Administration Act 1953 (Cth) (TAA) – where director penalties relate to unpaid amounts of estimates for pay as you withholding made by the Commissioner under Division 268 of Schedule 1 to the TAA – where issue arose as to whether the defendant contravened s 198G(1) of the Act by filing Revocation Affidavit – where this raised anterior considerations of whether a director can file an affidavit for the purposes of s 268-40 of Schedule 1 to the TAA in proceedings brought by the Commissioner against a director of a company for recovery of an estimate and if so, whether a director can file an affidavit for the purposes of s 268-40 of Schedule 1 to the TAA in proceedings brought by the Commissioner against a director of a company in liquidation for recovery of an estimate – application dismissed

Legislation: Acts Interpretation Act 1901 (Cth) ss 15AA, 46 Corporations Act 2001 (Cth) ss 198A, 198G, 588G , 588FDA, 588FE, 588M, 1317H Income Tax Assessment Act 1936 ss 222AGC, 222AGD, 222AHC, 222AHD, 222AIB, 222AIC, 222AFA – 222AMB, 222ANA, 222AOI , 222AOJ Insolvency Law Reform Act 2016 (Cth) Insolvency (Tax Priorities) Legislative Amendment Bill 1993 (Cth) Taxation Administration Act 1953 (Cth) Sch 1 ss 12-35, 16-75, 268-1, 268-5, 268-10, 268-15, 268-20, 268-25, 268-D, 268-35, 268-40, 268-90, 268-100, 269-15, 269-20, 269-30, 269-35, 269-45 Tax Laws Amendment (2012 Measures No. 2) Bill 2012 (Cth)