Deputy Commissioner of Taxation v Lencal Excavations P/L (in Liq) [2004] NSWSC 783

New South Wales Supreme Court

CITATION : Deputy Commissioner of Taxation v Lencal Excavations P/L (in Liq) [2004] NSWSC 783 HEARING DATE(S) : 10/08/04 JUDGMENT DATE : 10 August 2004

JUDGMENT OF : White J DECISION : 1. Stand over proceedings to 10am 18/8/04 before White J; 2. Direct that by 12pm 11/08/04 applicant serve a copy of the interlocutory process & supporting affidavits upon ASIC in accordance with Supreme Court (Corporations) Rule 2.8; 3. Direct that notice of the application be given to each of the creditors identified in schedule G to the Report as to Affairs; 4. Direct that exhibits be returned; 5. Costs of today reserved.

CATCHWORDS : Application for order that the winding-up of a company be terminated - Adequacy of evidence of the financial position of the company - Proposal to postpone debts owed to directors in event of later liquidation of company rather than inject funds as to capital - Failure to serve notice of application on ASIC - Service of notice of application on creditors whose debts would not be discharged by application. LEGISLATION CITED : Corporations Act 2001 (Cth) Income Tax Assessment Act 1997 (Cth) Mercy & Sons Pty Ltd v Wanari Pty Ltd (2000) 35 ACSR 70 Re Nature Springs Pty Ltd (in Liquidation) (1994) 13 ACSR 50 Re Data Homes Pty Ltd (1971) 1 NSWLR 338 CASES CITED : Sutherland v Rahm Enterprises Pty Ltd (2003) 21 ACLC 1385 McPherson, The Law of Company Liquidation 4 ed Supreme Court (Corporations) Rules 1999 Deputy Commissioner of Taxation v Sydney Concrete Steel Fixing Pty Ltd (1999) 17 ACLC 972 Deputy Commissioner of Taxation PARTIES : v Lencal Excavations Pty Ltd (in Liquidation) FILE NUMBER(S) : SC 2506/04 COUNSEL : Plaintiff: Korakis Applicant: J Chard (sol) SOLICITORS : Plaintiff: ATO Legal Services Applicant: Paul Bard