Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (in liq) [2016] NSWCA 69

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (in liq) [2016] NSWCA 69 Hearing dates: 23 February 2016; written submissions 15 March 2016 Decision date: 11 April 2016 Before: Gleeson JA; Leeming JA; Sackville AJA Decision: 1. Grant leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to the Commissioner to appeal.

2. Appeal allowed.

3. Cross-appeal dismissed.

4. Set aside order 1 made on 1 May 2015 and orders 1 and 2 made on 15 May 2015, and in lieu thereof order that the proceedings be dismissed with the plaintiffs to pay the defendant's costs of and incidental to the proceedings.

5. No order as to costs of the appeal or cross-appeal. Catchwords: CORPORATIONS – winding up – Commissioner entered a credit in company's Running Balance Account – Commissioner set off credit against other tax liabilities in other accounts – whether set off contrary to Corporations Act 2001 (Cth) ss 500, 501, 553 or 555

TAXES AND DUTIES – Running Balance Accounts – Part IIB of Tax Administration Act 1953 (Cth) – company in liquidation filed amended assessment – Commissioner entered a credit in company's Running Balance Account – whether Commissioner empowered or required to offset that amount against outstanding debts in separate accounts – whether Commissioner's approach inconsistent with pari passu principle Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Corporations Act 2001 (Cth), ss 5A, 436A, 500, 501, 553C, 555, 513B, 513C Taxation Administration Act 1953 (Cth), Ptt IIB, IVC, ss 8AAZA, 8AAZC, 8AAZD, 8AAZF, 8AAZH, 8AAZI, 8AAZL, 8AAZLA, 8AAZLB, 8AAZLC, 8AAZLF, Sch 1, Pt 4-15, ss 260-5, 260-45 Taxation Debts (Abolition of Crown Priority) Act 1980 (Cth) Cases Cited: Bruton Holdings Pty Ltd (in liq) v Commissioner of Taxation [2009] HCA 32; 239 CLR 346 Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited [2012] NSWCA 393 Federal Commissioner of Taxation v Official Receiver (1956) 95 CLR 300 Health Insurance Commission v Peverill (1994) 179 CLR 226 McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 Naaman v Sleiman [2015] NSWCA 259 Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360 Category: Principal judgment Parties: Commissioner of Taxation of the Commonwealth of Australia (Appellant/Cross-Respondent) 4 Doonan Street Collinsville Pty Ltd (in liq) (First Respondent/First Cross-Appellant) James Michael White in his capacity as liquidator of 4 Doonan Street Collinsville Pty Ltd (in liq) (Second Respondent/Second Cross-Appellant) Representation: Counsel: N Williams SC, L Livingston (Appellant/Cross-Respondent) JO Hmelnitsky SC, MJ O'Meara (Respondents/Cross-Appellants)