KEITH SMITH EAST WEST TRANSPORT PTY LTD v AUSTRALIAN TAXATION OFFICE [2002] NSWCA 264

Reported Decision : (2002) 42 ACSR 501

New South Wales Court of Appeal

CITATION : KEITH SMITH EAST WEST TRANSPORT PTY LTD v AUSTRALIAN TAXATION OFFICE [2002] NSWCA 264 FILE NUMBER(S) : CA 40081/2002 HEARING DATE(S) : 11 July 2002 JUDGMENT DATE : 14 August 2002

PARTIES : KEITH SMITH EAST WEST TRANSPORT PTY LTD (In liq) & Anor v AUSTRALIAN TAXATION OFFICE JUDGMENT OF : Mason P at 1; Handley JA at 41; Giles JA at 42

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9438/00 FILE NUMBER(S) : LOWER COURT GIBB DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: L J W Aitken Respondent: M R Aldridge SC/ P D Rodionoff SOLICITORS : Appellant: Jones King Lawyers Respondent: Australian Government Solicitor CATCHWORDS : CORPORATIONS - insolvency - taxation assessed and paid by company - whether company was insolvent at the time of payment or if it became insolvent as a result of the payment - unfair preference - Corporations Act, s95A and Part 5.7B - statutory presumption of insolvency - financial records of company - credibility of witnesses - proof of insolvency - a conclusion as to solvency or otherwise can only be made having regard to the total position at the relevant time - whether appropriate to consider a creditor's willingness to defer enforcement action subject to satisfactory arrangements for the reduction of debt. (ND) LEGISLATION CITED : Corporations Act 2001, s95A and Part 5.7B Abalos v Australian Postal Commission (1990) 171 CLR 167 Brooks v Heritage Hotel Adelaide Pty Ltd (1996) 20 ACSR 61 CASES CITED: Sandell v Porter (1966) 115 CLR 666 Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 Sutherland (as liquidator of Sydney Appliances Pty Ltd (in liq)) v Eurolinx Pty Ltd (2001) 37 ACSR 477 DECISION : Appeal dismissed with costs.