In the matter of Bayconnection Property Developments Pty Ltd [2011] NSWSC 1048

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Bayconnection Property Developments Pty Ltd [2011] NSWSC 1048 Hearing dates: 8 September 2011 Decision date: 08 September 2011 Jurisdiction: Equity Division - Corporations List Before: Barrett J Decision: Originating process dismissed with costs Catchwords: CORPORATIONS - winding up - statutory demand - application for order setting aside - debt is tax debt to which conclusivity provisions of Commonwealth law apply - application dismissed Legislation Cited: Corporations Act 2001 (Cth), s 459G, 459H(1)(a), 459J Cases Cited: Capital Holdings Pty Ltd v Commissioner of Taxation [2011] NSWSC 450 Catarina Gardens Pty Ltd v Deputy Commissioner of Taxation [2011] NSWSC 449; 83 ACSR 392 Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473 Matrix Holdings Pty Ltd v Deputy Commissioner of Taxation [2011] NSWSC 324 Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409 Category: Principal judgment Parties: Bayconnection Property Developments Pty Ltd - Plaintiff Deputy Commission of Taxation - Defendant Representation: Ms R Caporale - Representative of Plaintiff Mr Y Acheampong - Defendant Representative in person - Plaintiff ATO Legal Practice - Defendant File Number(s): 2011/00135231

Judgment 1The plaintiff, by originating process, filed on 27 April 2011 applies under s 459G of the Corporations Act 2001 (2001) for an order setting aside a statutory demand served on it by the defendant, Deputy Commissioner of Taxation. 2The debt to which the statutory demand relates is in the sum of $145,922.55, and is described as follows: " Description of the Debt Amount of the Debt Running Balance Account deficit debt as at 1 April 2011 in respect of amounts due under the BAS provisions as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997 ('the ITAA 1997') [BAS provisions include, generally: the goods and services tax provisions, the PAYG withholding provisions, the PAYG instalment provisions, the fringe benefits tax instalment provisions and the deferred company instalment provisions], administrative overpayments due under section 8AAZN of the Taxation Administration Act 1953 ('the TAA 1953') and the general interest charge payable under section 8AAZF of the TAA 1953, being a debt due and payable by the company pursuant to section 8AAZH of the TAA 1953 145,922.55 " 3The debt is thus a debt due under the specified provisions of the taxation laws of the Commonwealth. 4The transcript will show the explanation of the facts of this case given to the court by Mr Acheampong, who has appeared for the Deputy Commissioner. That statement of facts is not questioned by the plaintiff and is consistent with the evidence given by Mr Casonato in his affidavit of 30 June 2011. 5The facts as to the basis for the plaintiff's indebtedness under the taxation legislation are indistinguishable from those that came before the court in Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409, Matrix Holdings Pty Ltd v Deputy Commissioner of Taxation [2011] NSWSC 324, Catarina Gardens Pty Ltd v Deputy Commissioner of Taxation [2011] NSWSC 449; (2011) 83 ACSR 392, and Capital Holdings Pty Ltd v Commissioner of Taxation [2011] NSWSC 450, with the exception that those cases involved unresolved objections against assessments whereas in this case an objection has been determined by being disallowed and the plaintiff has taken steps to appeal to the Administrative Appeals Tribunal. 6Despite that difference, the principles on which the earlier cases were decided, based on the decision of the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473, are wholly applicable to this case. There is no basis on which it is open to the court in the present proceedings to come to any conclusion different from the conclusion reached in each of the earlier cases (being, I might say, cases involving companies associated with the present plaintiff and for which Ms Caporale, an authorised person, appeared as she has appeared today for the plaintiff). 7The outcome is inevitable. There is no basis whatsoever for relief based on either s 459H(1)(a) or s 459J. The reasons are succinctly stated in the written outline of submissions provided to the court by Mr Acheampong which will be kept in the court file. 8The orders of the court are as follows: 1. Order that the proceedings be dismissed. 2. Order that the plaintiff pay the defendant's costs of the proceedings.