Apex People Pty Limited (In Liquidation) & anor v The Commissioner of Taxation [2006] NSWSC 133

New South Wales Supreme Court

CITATION : Apex People Pty Limited (In Liquidation) & anor v The Commissioner of Taxation [2006] NSWSC 133

HEARING DATE(S) : 21, 22 and 23 November 2005

JUDGMENT DATE : 15 March 2006

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : Judgment for plaintiff for the sum of $843,137.60.

CATCHWORDS : CORPORATIONS - unfair preferences - company was insolvent when payments made - defence under s588FG not made out

LEGISLATION CITED : Corporations Act 2001, s558E, s558F, s558FG

CASES CITED : Cussen as Liquidator of Akai Pty Ltd (in liq) v Commissioner of Taxation (2004) 51 ACSR 530

PARTIES : Apex People Pty Limited (In Liquidation) (First Plaintiff) Manfred Holzman as liquidator of Apex People Pty Limited (In Liquidation) (Second Plaintiff)

FILE NUMBER(S) : SC 4105 of 2004

COUNSEL : Mr S Golledge (Plaintiffs) Mr P Fury (Defendant)

SOLICITORS : Piper Alderman (Plaintiffs) ATO General Counsel (Defendant)

- 10 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

WEDNESDAY 15 MARCH 2006.

4105/04 APEX PEOPLE PTY LIMITED (IN LIQUIDATION) & ANOR V THE COMMISSIONER OF TAXATION JUDGMENT Outline 1 Mr Holzman, the second plaintiff, is the liquidator of Apex People Pty Limited (In Liquidation) (Apex), the first plaintiff. He seeks to recover from the defendant, the Commissioner of Taxation, amounts totalling in all $923,358 paid by the company to the Commissioner during the relation back period. 2 Apex was placed into administration on 23 July 2001. Mr Holzman was appointed administrator. On 17 August 2001, the creditors resolved that the company be wound up and Mr Holzman became liquidator. It follows that the winding up commenced on 23 July 2001 so the relevant period for preference purposes is from 23 January 2001 to the date the winding up commenced. During that time Apex made ten separate payments totalling $923,358 to the defendant Commissioner. Law 3 It is not necessary to set out the relevant sections of the Corporations Act 2001 (the Act). As a result of admissions on the pleadings and concessions made at the outset, it is accepted that the plaintiff liquidator will succeed in his claim in respect to a particular individual payment if: