Federal Court of Australia Deputy Commissioner of Taxation v AGJ Businesses Pty Ltd [2024] FCA 400 File number: NSD 1472 of 2023 Judgment of: CHEESEMAN J Date of judgment: 18 April 2024 Catchwords: CORPORATIONS — where winding up orders have been made and the director of the company in liquidation purports to apply in the company's name to set aside those orders pursuant to s 482 of the Corporations Act 2001 (Cth), s 35A of the Federal Court of Australia Act 1976 (Cth) and rr 3.11, 39.04 or 39.05 of the Federal Court Rules 2011 (Cth)— where the sole director / shareholder seeks to bring the application in the company's name pursuant to s 198G(3)(b) of the Corporations Act — where it has not been demonstrated that it is arguable that the company is solvent — whether application should be granted — Held: application dismissed. Legislation: Corporations Act 2001 (Cth) ss 198G(1), (3)(b), 482(1), (1A) Federal Court of Australia Act 1976 (Cth) s 35A(5) Federal Court Rules 2011 (Cth) r 39.04, 39.05(a) Cases cited: Kitoko v Registrar of the Federal Court of Australia [2024] FCAFC 14 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 23 Date of hearing: 18 April 2024 Solicitor for the Plaintiff: Mr T Trotman of K&L Gates Counsel for the Defendant: Ms Amanda Johnstone, the director of the defendant appeared in person and was granted limited leave for the purposes of her application to seek leave to bring the interlocutory application in the name of the defendant. ORDERS NSD 1472 of 2023 BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff AND: AGJ BUSINESSES PTY LTD ACN 144 636 528 Defendant order made by: CHEESEMAN J DATE OF ORDER: 18 April 2024 THE COURT ORDERS THAT: 1. The application styled as an Interlocutory Process dated 23 February 2024, accepted for filing on 27 February 2024, be dismissed. 2. The Defendant pay the Plaintiff's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHEESEMAN J 1 Earlier today, I made orders dismissing an application which sought amongst other things to set aside an order winding up AGJ Businesses Pty Ltd. These are my reasons for doing so. INTRODUCTION 2 On 21 February 2024, on the application of the Deputy Commissioner of Taxation, a Registrar of this Court ordered that AGJ be wound up in insolvency, and that Mr Richard Stone, be appointed as its liquidator. There was no appearance for AGJ on that application which was conducted remotely by web conference. Ms Amanda Johnstone, the sole director and shareholder of AGJ appeared after orders were made. 3 On 26 February 2024 Ms Johnstone caused a document styled as an Interlocutory Process to be lodged purportedly in the name of AGJ (the Application). The Application was accepted for filing on 27 February 2024. 4 The relief sought in the Application included, amongst other things, an order that the winding up be set aside under s 482 of the Corporations Act 2001 (Cth). The Application, having been brought without approval, whether by the liquidator or the Court, was irregular. Ms Johnstone subsequently indicated that she would make an oral application for leave to bring the Application in AGJ's name relying on s 198G(3)(b) of the Corporations Act. 5 The Application was listed for hearing on 18 April 2024. The Court granted leave to Ms Johnstone to appear for the purpose of making her oral application and otherwise to clarify her position, including as to whether she sought to bring the Application or any part of it in her own name, relying on her status as the sole shareholder of AGJ. Ms Johnstone confirmed that she only wished to pursue the application if leave was granted to do so in the name of AGJ. 6 The Application was opposed by the Deputy Commissioner. The liquidator was informed of the Application and communicated to the Court, Ms Johnstone and the Deputy Commissioner that: (1) he did not consent to leave being granted; (2) his position was that the liquidation of AGJ should not be terminated where there is "no evidence as to solvency"; (3) he has not been provided with any of the books and records or financial statements of AGJ; (4) Ms Johnstone, in her capacity as director, has failed to complete a Report on Company Activities and Property for AGJ and this has prevented his investigation into the affairs of the AGJ; and (5) he is without legal representation and funds in liquidation. EVIDENCE 7 On the Application, Ms Johnstone relied on: (1) her affidavit dated 23 February 2024. (2) her written submissions to the Court dated 24 March 2024; (3) Exhibit A – comprising of five extracts from the Xero dashboard for AGJ and profit and loss statements of AGJ for the periods: (a) 1 July 2023 to 25 February 2024; (b) 1 February 2024 to 23 February 2024; (c) 1 March 2024 to 22 March 2024; (d) 1 April 2024 to 17 April 2024; and (e) 1 April 2024 to 11 April 2024. 8 The Deputy Commissioner relied on affidavits of: (1) Ms Anjana Aryal, an employee of the Australian Tax Office (ATO), affirmed on 17 April 2024; (2) Ms Leann Gadsden affirmed on 5 December 2023 (filed in support of winding up before Registrar Stone); (3) Ms Angela Burow affirmed 19 September 2023 (evidencing service of statutory demand); and (4) Ms Jane Isabella Carmel affirmed: (a) on 17 January 2024 (evidencing service in respect of the originating process and supporting documents); (b) on 7 February 2024 (evidencing publication and lodgement of the windup of AGJ); and (c) on 20 February 2024 (evidencing service of statement of costs and disbursements). CONSIDERATION 9 Ms Johnstone appeared in person. She is not legally qualified. I am conscious of the difficulties faced by litigants in person and I have endeavoured to do my best to address the substance of the arguments Ms Johnstone advanced within the relevant legal framework. 10 As I followed her submissions, Ms Johnstone sought, in AGJ's name to challenge the winding up of AGJ under s 482 of the Corporations Act. Secondly, by bringing an application in AGJ's name seeking to set aside the Registrar's orders either under the general power available under r 39.04 of the Federal Court Rules 2011 (Cth) (the FCR) on the basis that the orders had not been entered or under the power in r 39.05(a) on the basis that the orders were made in the absence of AGJ. Thirdly, by, in AGJ's name, seeking review of the Registrar's orders under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and r 3.11 of the FCR. 11 Ms Johnstone is precluded from performing or exercising a function or power as a director while AGJ is under the control of the liquidator unless she obtains written approval to do so from the liquidator or the Court: s 198G(1), (3)(b). 12 As mentioned, the liquidator does not consent to Ms Johnstone bringing this Application in the name of AGJ. 13 I now turn to consider Ms Johnstone's application under s 198G(3)(b). In considering whether Ms Johnstone should be given leave to proceed in the company's name under s 198G(3)(b) it is relevant to consider: (1) the strength or viability of the case sought to be advanced in the company's name; and (2) the protection of the assets of the company and the minimisation of the prejudice to the company and its creditors if leave is granted. 14 In relation to the application under s 482 of the Corporations Act, Ms Johnstone's attempt to bring the Application is misconceived. The company does not have standing under s 482(1A) to apply for relief under s 482(1). Even if this were not so, Ms Johnstone has been frank in her evidence in acknowledging that AGJ is not in a position to pay its tax debt which is not disputed and which was the subject of the statutory demand. She is seeking additional time and a payment arrangement to facilitate payment by future instalments. However, despite a discussion in September 2023 between Ms Johnstone and an officer of the ATO, a payment agreement has not been reached. In these circumstances I was not satisfied Ms Johnstone should be given leave to pursue relief in the name of AGJ under s 482 of the Corporations Act. Given my conclusion, it is not necessary to address whether it would be appropriate for AGJ to be relieved of the obligation to proceed in the Court by a lawyer: r 4.01(2) of the FCR. 15 Ms Johnstone also seeks leave to apply in AGJ's name to set aside the Registrar's orders relying on r 39.04 and/or r 39.05. She does not seek to bring an application of this kind in her own name as an interest person, being the director and shareholder of AGJ. 16 It is common ground that the Registrar's order was made in the absence of AGJ. It is also common ground that Ms Johnstone attempted to connect to the hearing but experienced technical difficulty in doing so. When she did manage to connect, orders had already been made. 17 Ms Johnstone filed the Application promptly. If the Application is read as an application under r 39.04, then it was filed before the Registrar's orders were entered: see Kitoko v Registrar of the Federal Court of Australia [2024] FCAFC 14 at [26] to [40] (Thawley, Cheeseman and Shariff JJ). 18 The Application did not refer to r 39.04. Instead, it referred only to s 482 of the Corporations Act. For that reason it may be that the application to set aside under the Rules was made after the Registrar's orders were entered. If so, it may be more appropriate to treat this application as an application under r 39.05(a) of the FCR. In my view notwithstanding that r 39.04 confers a general power, whereas r 39.05 is constrained by reference to the subparagraphs of that rule, the distinction is not meaningfully engaged in the present context. Ms Johnstone relies on the fact that the order was made in the absence of AGJ and she has explained why that was so. I was satisfied that Ms Johnstone had adequately explained why AGJ did not appear and that she took steps to bring the Application promptly thereafter. However, that is not the end of the matter. The exercise of the discretion to set aside an order of the Court under r 39.04 or r 39.05(a) must be approached with caution, cognisant of the importance of the public interest in the finality of litigation. In the circumstances of this Application, where it is acknowledged that AGJ cannot presently pay its undisputed debt which is due and in respect of which a payment arrangement has not been agreed, I was not satisfied it would be just to set aside the Registrar's orders. 19 Finally, insofar as Ms Johnstone purports to bring an application for review of the Registrar's decision under s 35A(5) of the FCA Act and r 3.11 of the FCR, it is necessary for her to bring that application in the company's name because an application for review can only be brought by a party. I have had regard to all of the evidence including the additional evidence that Ms Johnstone relied upon before me in order to consider the strength or viability of a review de novo of the Registrar's decision. But as I have already mentioned, the evidence that Ms Johnstone relies on, and the submissions that she has made, confirm that AGJ does not dispute the tax debt and whilst desirous of being given more time to continue to trade and thereby seek to pay the debt over time, acknowledges that AGJ cannot at this time pay the debt that is presently due. In these circumstances, there would be no utility in granting leave to Ms Johnstone to bring a review application in AGJ's name. 20 For these reasons, I dismissed the Application. The plaintiff sought his costs of the hearing, submitting that costs should follow the event and also pressed an application for the costs to be borne by Ms Johnstone personally. 21 I was not persuaded that there is a basis for varying the usual order that costs should follow the event. I will so order. 22 The evidence before me demonstrated that Ms Johnstone had sought to act promptly and to frame the Application as best she could, given her lack of legal assistance. She maintained she was impecunious and that was not challenged. In her evidence and submissions, she gave a cogent explanation of the external forces beyond her control which had adversely impacted AGJ's business. She has endeavoured to reach a payment agreement in respect of AGJ's tax debt but has been unable to do so. She was clear in her position that she only sought to bring the Application in the name of AGJ and not personally. I was not satisfied that a personal costs order against Ms Johnstone ought be made. 23 For these reasons, I made orders at the conclusion of the hearing dismissing the Application with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman. Associate: Dated: 18 April 2024