Bruton Holdings Pty Limited (in liquidation) v Commissioner of Taxation [2009] HCA 32

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON AND BELL JJ

BRUTON HOLDINGS PTY LIMITED (IN LIQUIDATION) APPELLANT

AND

COMMISSIONER OF TAXATION & ANOR RESPONDENTS

Bruton Holdings Pty Limited (in liquidation) v Commissioner of Taxation

[2009] HCA 32

26 August 2009

S158/2009

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 25 February 2009, and in their place order that the appeal to that Court be dismissed with costs.

On appeal from the Federal Court of Australia

Representation

S D Robb QC with D R Stack for the appellant (instructed by Nash O'Neill Tomko Lawyers)

A H Slater QC with R L Seiden and E Bishop for the first respondent (instructed by Australian Government Solicitor)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Bruton Holdings Pty Limited (in liquidation) v Commissioner of Taxation

Taxation – Recovery of tax debts – Company deposited moneys with third party – Passage of creditors' resolution for winding up of company – Commissioner of Taxation ("Commissioner") issued notice under s 260‑5 in Sched 1 to the Taxation Administration Act 1953 (Cth) ("Administration Act") requiring moneys held by third party be paid to Commissioner – Whether s 260‑5 notice may be issued after commencement of winding up – Whether steps taken by Commissioner void and unenforceable as an "attachment" within meaning of s 500(1) of Corporations Act 2001 (Cth) – Relationship between s 260‑5 and s 500(1).

Companies – Winding up – Creditors' voluntary winding up – Whether s 260‑5 in Sched 1 to Administration Act applicable – Relationship between s 260‑5 and s 260‑45.

Words and phrases – "attachment", "property".