Commissioner of Taxation v Moodie [2014] NSWCA 59

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Commissioner of Taxation v Moodie [2014] NSWCA 59 Hearing dates: 15 April 2013 Decision date: 14 March 2014 Before: McColl JA at [1], Meagher JA at [105], Barrett JA at [128] Decision: (1) Grant leave to appeal. (2) Appellant to file the Notice of Appeal in the form appearing as a draft in the White Book within 14 days. (3) Appeal dismissed. (4) Appellant to pay the respondents' costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CORPORATIONS - winding up - insolvent transactions - recovery of preferences - claim by liquidator against Commissioner of Taxation pursuant to s 588FF, Corporations Act 2001 (Cth) - Commissioner joins company's director to seek indemnity pursuant to s 588FGA - Commissioner withdrew defence to liquidator's claim - director raises issue of insolvency but subsequently withdraws defence - primary judge enters judgment in liquidator's favour against Commissioner and in Commissioner's favour against director - whether primary judge erred in ordering Commissioner to pay liquidator's costs after Commissioner's defence withdrawn Legislation Cited: Civil Procedure Act 2005 (NSW) Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Supreme Court Act 1970 (NSW) Supreme Court Rules 1970 (NSW) Taxation Administration Act 1953 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Barakat v Bazdarova [2012] NSWCA 140 Barclays Bank v Tom [1923] 1 KB 221 Commissioner of Taxation v Sims [2008] NSWCA 298; (2008) 72 NSWLR 716 Commonwealth of Australia v Gretton [2008] NSWCA 117 Condon v Commissioner of Taxation [2004] NSWSC 481; 207 ALR 676 Cooper as liquidator of Wanted World Wide (Australia) Ltd (in liq) v Commissioner of Taxation [2004] FCA 1063; (2004) 139 FCR 205 Crosbie v Commissioner of Taxation [2003] FCA 922; (2003) 130 FCR 275 Dean-Willcocks v Commissioner of Taxation (No 2) [2004] NSWSC 286; (2004) 49 ACSR 325 Duncan v Commissioner of Taxation; Re Trader Systems International Pty Ltd (in liq) [2006] FCA 885; (2006) 58 ACSR 555 Edginton v Clark [1964] 1 QB 367 Financial Wisdom Ltd v Newman [2005] VSCA 110; (2005) 12 VR 79 Georges v Locktronic Systems Pty Ltd [2009] VSC 523 Hall (as liquidators of Reynolds Wines Ltd) v Commissioner of Taxation [2004] NSWSC 985; (2004) 186 FLR 111 Hall v Poolman (No 2) [2007] NSWSC 1494 Harris v Commissioner of Taxation [2006] QSC 108; [2006] 2 Qd R 445 House v The King [1936] HCA 40; (1936) 55 CLR 499