Noxequin Pty Ltd v Deputy Commissioner of Taxation [2007] NSWSC 87

New South Wales Supreme Court

CITATION : Noxequin Pty Ltd v Deputy Commissioner of Taxation [2007] NSWSC 87

HEARING DATE(S) : 06/02/07

JUDGMENT DATE : 16 February 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : Order for payment of money by Commissioner of Taxation to company in liquidation. Declaration that director of company liable to indemnify Commissioner in part. Order for payment of money by director to Commissioner. Costs orders as outlined at paragraph 48.

CATCHWORDS : CORPORATIONS - winding up - insolvent transactions - recovery of preferences - claim by liquidator against Commissioner of Taxation - Commissioner joins company's sole director as third party - no contest by Commissioner - director puts liquidator to proof of insolvency - whether insolvency established - principles on which interest should be included in order for payment made against Commissioner - whether director can be subjected to separate order for payment of interest - principles on which costs should be awarded where no contest by Commissioner and director declined to admit insolvency ultimately proved

Civil Procedure Act 2005, s.17(3) LEGISLATION CITED : Corporations Act 2001 (Cth), ss.95A, 588FA, 588FC, 588FE, 588FF(1), 588FGA Taxation Administration Act 1953 (Cth), Subdivision 16B of Schedule 1 Uniform Civil Procedure Rules 2005, rules 17.3(1), 17.3(2), 42.8(2)

Box Valley Pty Ltd v Kidd (2006) 24 ACLC 471 Browne v Deputy Commissioner of Taxation (1998) 82 FCR 1 Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Condon (as liquidator of Justinprint Pty Ltd) v Commissioner of Taxation (2004) 49 ACSR 681 Cooper (as liquidator of Wanted Worldwide (Australia) Pty Ltd) v Commissioner of Taxation (2004) 210 ALR 635 Crema Pty Ltd v Land Mark Property Developments Pty Ltd (2006) 58 ACSR 631 Crosbie v Commissioner of Taxation (2003) 130 FCR 275 Dean-Willcocks (as liquidator of SJP Formwork (NSW) Pty Ltd) v Commissioner of Taxation (No 2) (2004) 49 ACSR 325 Duncan v Commissioner of Taxation (2006) 58 ACSR 555 Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711 Hall (as liquidator of New Tel Ltd) v Ledge Finance Ltd [2005] NSWSC 645 Hall (as liquidator of Reynolds Vineyards Pty Ltd) v Commissioner of Taxation (2004) 51 ACSR 169 Hall (as liquidator of Reynolds Wines Ltd) v Commissioner of Taxation (2004) 51 ACSR 173 CASES CITED : Harris (as liquidator of Denlizco Trading Pty Ltd) v Commissioner of Taxation (2006) 57 ACSR 706 Helicopter Sales (Aust) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1 Hymix Concrete Pty Ltd v Garritty (1977) 2 ACLR 559 Jones v Dunkel (1959) 101 CLR 298 Keith Smith East West Transport Pty Ltd v Australian Taxation Office (2002) 42 ACSR 501 Lewis (as liquidator of Doran Constructions Pty Ltd) v Doran (2005) 54 ACSR 410 Millane v Nationwide News Pty Ltd [2004] NSWSC 1023 Pegulan Floor Coverings Pty Ltd v Carter (1997) 24 ACSR 651 Star v O'Brien (1996) 40 NSWLR 695 Superior Press Pty Ltd v Deputy Commissioner of Taxation (2004) 55 ATR 541 Tolcher v National Australia Bank Ltd (2003) 174 FLR 251 Travers v Commissioner of Taxation (2006) 58 ACSR 472 Woodgate (as liquidator of Fairlight ESP Pty Ltd) v Commissioner of Taxation [2006] NSWSC 778 Young (as liquidator of TransAustralian Pty Ltd) v Commissioner of Taxation (2006) 56 ACSR 654