Mark Cooper v Commissioner of Taxation [2009] NSWSC 880

Reported Decision : 76 ATR 91

New South Wales Supreme Court

CITATION : Mark Cooper v Commissioner of Taxation [2009] NSWSC 880

HEARING DATE(S) : 23 July 2009 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 23 July 2009

DECISION : Judgment for the plaintiffs against the Commissioner in the amount of $126,152.99. Judgment in favour of the Commissioner against the respondent, Mr Issa, in the amount of $70,414.16

CATCHWORDS : CORPORATIONS – Application by company and its liquidators under s 588FF of the Corporations Act 2001 (Cth) ("the Act") to recover from the Deputy Commissioner of Taxation payments made under alleged voidable transactions within meaning of s 588FE of the Act – No contest by Commissioner – Commissioner seeks indemnity under s 588FGA of the Act from company's director for part of the amount - Director contests insolvency and plead defences under ss 588FGB(3) and (4) – Whether insolvency established – Whether defences made out

Corporations Act 2001 (Cth) LEGISLATION CITED : Taxation Administration Act 1953 (Cth) Income Tax Assessment Act 1936 (Cth)

CATEGORY : Principal judgment

Powell v Fryer (2001) 37 ACSR 589 Melbase Corporation Pty Ltd v Segenhoe Ltd 17 ACSR 187 CASES CITED : Noxequin Pty Ltd v Deputy Commissioner of Taxation [2007] NSWSC 87 Tourprint International Pty Ltd (in liquidation & Another) v Bott (1999) 32 ACSR 201 Deputy Commissioner of Taxation v Saunig (2002) 55 NSWLR 722

Mark Cooper (in his capacity as liquidator of ACN 113 168 040 Pty Ltd (in liquidation)) - Plaintiff PARTIES : ACN 113 168 040 (formerly Butler & Blackberry Pty Ltd - Second Plaintiff Commissioner of Taxation - Defendant Pierre Issa - Respondent