New South Wales Supreme Court CITATION : Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1430 HEARING DATE(S) : 09/12/10 JUDGMENT DATE : 9 December 2010 JURISDICTION : Equity Division Corporations List JUDGMENT OF : Barrett J EX TEMPORE JUDGMENT DATE : 9 December 2010 DECISION : Application dismissed CATCHWORDS : CORPORATIONS - winding up - statutory demand - application for extension of time for compliance - power to extend exists only if valid s 459G application made - no such application made LEGISLATION CITED : Corporations Act 2001 (Cth), ss 459F(2)(a)(i), 459G CATEGORY : Principal judgment CASES CITED : Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409 Mossimo Systems International Pty Ltd Horizon Developments Sydney Pty Ltd Precise Constructions Pty Ltd Integrated Constructions Pty Ltd PARTIES : Caporale Buiilders Corporation Sydney Pty Ltd Elite Project Management Pty Ltd Caporale Group Pty Ltd Matrix Holdings Pty Ltd Caporale Builders Pty Ltd - Plaintiffs Deputy Commissioner of Taxation - Defendant FILE NUMBER(S) : SC 2010/109215 COUNSEL : Ms R Caporale in person - Plaintiffs SOLICITORS : Ms R Caporale in person - Plaintiffs - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST BARRETT J 9 DECEMBER 2010 2010/109215 MOSSIMO SYSTEMS INTERNATIONAL PTY LTD & ORS v DEPUTY COMMISSIONER OF TAXATION 1 Ms Caporale has come before the court this afternoon on behalf of the seven plaintiffs referred to in my judgment of 2 December. She has done so, she says, with the knowledge of the defendant Deputy Commissioner of Taxation. She spoke to an officer of the Australian Taxation Office earlier today. 2 Ms Caporale seeks on behalf of each of the seven plaintiffs an order under s 459F(2)(a)(i) of the Corporations Act 2001 (Cth) extending the time for compliance with the statutory demand. The period of extension sought is 90 days. 3 An order can be made under s 459F(2)(a)(i) only if there has been a valid application under s 459G for an order setting aside the relevant statutory demand. 4 For reasons given at paragraphs [9] to [11] of the judgment of 2 December 2010 (Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409), that pre-condition is not satisfied in this case. It is accordingly not open to the court to make any order under s 459F(2)(a)(i). 5 The notice of motion is dismissed. 6 I should add for Ms Caporale's benefit that this in no way precludes her attempting to negotiate further with the Australian Taxation Office with a view to persuading it not to initiate winding up proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.