In the matter of Personnel Concept Group Pty Limited (in liq) [2024] NSWSC 522

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Personnel Concept Group Pty Limited (in liq) [2024] NSWSC 522 Hearing dates: 1 May 2024 Date of orders: 1 May 2024 Decision date: 01 May 2024 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order that the deregistration of the company be delayed to 5 May 2027 and other orders. Catchwords: CORPORATIONS – Winding up – Application by interested party – Order sought that the Australian Securities and Investment Commission deregister the company on a specified future date under s 509(2) of the Corporations Act 2001 (Cth) – Where the interests of interested party will be adversely affected if deregistration is not delayed – Where the liquidators appointed to the company had previously given notice that they had ceased to hold office. Legislation Cited: Corporations Act 2001 (Cth) s 509 Cases Cited: - Re ACN 002 408 040 (in liq) (2013) 94 ACSR 485; [2013] NSWSC 470 - Re Miramax Projects Pty Ltd (in liq) [2024] NSWSC 184 - Re Rosaub Pty Ltd (2005) 54 ACSR 371; [2005] NSWSC 689 Category: Principal judgment Parties: Pieter Sarel De Bryun (Plaintiff) Australian Securities and Investments Commission (Defendant) Representation: Counsel: E Phelan (Plaintiff)

Solicitors: Ironbridge Legal (Plaintiff) File Number(s): 2024/152664

Judgment – EX TEMPORE (Revised 2 May 2024)

Nature of the application and affidavits 1. By Originating Process filed, by leave, on 29 April 2024 Mr De Bruyn, who is a director of Personnel Concept Group Pty Ltd (in liq) ("Company") seeks an order, under s 509(2) of the Corporations Act 2001 (Cth) ("Act"), that the Defendant, the Australian Securities and Investments Commission ("ASIC"), deregister the Company on 5 May 2027 or alternatively 5 May 2026. That application is directed, not to requiring a deregistration of the Company that would otherwise not take place, but instead, consistent with the case law, to deferring the deregistration of the Company that would otherwise shortly take place to a specified date in the future. 2. The application is supported by Mr De Bruyn's affidavit dated 23 April 2024. He notes that the Company operated as a recruitment agency business, and was wound up in a creditors' voluntary liquidation, and Messrs Frisken and Bailey were appointed as its joint and several liquidators. On 5 February 2024, Messrs Frisken and Bailey lodged, with ASIC, an End of Administration Return and a notification of their cessation as an external administrator ("Cessation Notification") in respect of the Company. The Cessation Notification proceeded on the basis that they had ceased to be the liquidators of the Company on 31 January 2024, which would have had the consequence that the Company remained in existence, with no liquidators in office, although it remained in liquidation. The effect of the End of Administration Return was that, absent the order that is now sought by Mr De Bruyn, ASIC must deregister the Company at the end of the three-month period beginning the date that return was lodged, that is, on or about 5 May 2024. 3. Mr De Bruyn requested ASIC to defer the deregistration of the Company in circumstances that he, with the liquidators' consent, had lodged objections to assessments made by the Australian Taxation Office ("ATO") in respect of tax owed by the Company. ASIC had, rightly, noted that it had no discretion in that respect and an application would need to be made to the Court, as has now occurred. 4. Mr De Bruyn's affidavit in turn refers to director penalty notices issued by the ATO to him, in respect of superannuation guarantee charges and PAYG withholding tax in respect of the Company. He also refers to the issue of amended assessments of superannuation guarantee charges by the ATO, and to an agreement that he reached to pay the ATO a specified sum in settlement of proceedings which had been commenced against him. It appears, however, that the settlement that was reached did not resolve certain liabilities, in respect of superannuation guarantee charges and PAYG withholding tax, which are in turn contested by Mr De Bruyn. He notes that, with the liquidators' authority, his accountants and tax agent have submitted objections in respect of notices issued by the ATO for specified periods, contesting the amounts that are payable under those notices. It appears that the issues in dispute include whether the notices issued by the ATO include persons who are not employed by the Company during the relevant period, or did not receive income from the Company in that period, and, Mr De Bruyn contends, do not reflect all payments made by the Company for employees' superannuation guarantee charge liability in the relevant period. It is not necessary to assess the detail of that claim in order to deal with this application. 5. Mr De Bruyn seeks an extension of time for the deregistration of the Company, to a fixed future date, under s 509(2) of the Act, on the basis that, plainly enough, his interests are affected by the ATO's decision on the objections that have been submitted with the liquidators' authority. He points to the fact that, under the ATO's published policies, it will not continue to deal with the application if the Company is deregistered, so he will be deprived of any prospect of a positive outcome in respect of the objections, and exposed to significant adverse financial consequences from steps which may be taken by the ATO if the objections are not successful. 6. Mr De Bruyn also reads an affidavit dated 29 April 2024 of Ms Ma, which refers to service of the proceedings on ASIC, which has indicated that it neither consents nor objects to the proposed orders being made, although it has rightly pointed to the form which such orders should take. Ms Ma also refers to service of the proceedings on the other former director of the Company, who is overseas, but has accepted service of the relevant documents, and indicated that he does not wish to appear in the proceedings. Ms Ma also refers to service of the proceedings on the liquidators, or former liquidators, who have taken no active role, other than in respect of a matter to which I refer below. 7. By a further affidavit of service dated 29 April 2024, Mr Ratnayake refers to service of the documents, inter alia, on the ATO, which has also taken no active role in the proceedings. Plainly, it was appropriate to serve the proceedings on the ATO, where its interests are potentially affected, in respect of the objections taken and any further proceedings, by the orders that are sought.