FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583

THE COURT ORDERS THAT:

1.    Compumark Pty Ltd be wound up in insolvency by this Court under the provisions of the Corporations Act 2001 (Cth).

2.    Andrew McClellan of PPB Advisory, Level 21, 181 William Street, Melbourne, be appointed as the liquidator of the company, and be entitled to his reasonable remuneration, costs and expenses incurred in the performance of his duties to the company.

3.    The costs of this application (including any reserved costs) be costs in the winding up to be paid out of the assets of the company.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    In this matter the plaintiff, the Deputy Commissioner of Taxation, seeks to wind up the defendant, Compumark Pty Ltd, pursuant to s 459P of the Corporations Act 2001 (Cth) (“the Act”) on the ground of insolvency. The application relates to a sum claimed to be payable by Compumark to the Deputy Commissioner of $51,234.47, recoverable by the Deputy Commissioner under provisions of the Taxation Administration Act 1953 (Cth) (“Tax Administration Act”).

2    A statutory demand for payment of this taxation debt was served on Compumark on 30 August 2011 and Compumark has failed to pay the debt. The application to wind up the company is supported by a supporting creditor, the Fair Work Ombudsman, who relies on an Order of the Magistrates Court of Victoria dated 1 December 2010 ordering Compumark to pay a civil penalty of $99,000.

3    Mr Guiseppe De Simone is the sole director of Compumark and seeks to represent it in opposing the application. As he is not a lawyer he seeks that the Court dispense with r 4.01(2) of the Federal Court Rules 2011 (“Rules”) in order that he may do so. He also seeks to appear as a creditor of Compumark opposing the application.

4    The proceeding comes before me by order of a Registrar of this Court dated 26 April 2012 which dismissed Mr De Simone’s application to represent Compumark and adjourned the proceeding to be determined by a judge of the Court.

5    The matter was then listed for hearing before me on 8 May 2012. Although Compumark was sent a Notice of Listing of the matter, Mr De Simone informed me on that date that he understood that only his application to dispense with r 4.01(2) was to be heard. Further he had none of the relevant papers with him. The Deputy Commissioner thought that the only matter before the Court was the substantive application to wind up the company, correctly noting that Mr De Simone had not applied to review the decision of the Registrar dismissing the application to dispense with r 4.01(2).

6    I ordered the adjournment of the matter to 10 May 2012 and ordered that Mr De Simone file any affidavit in support of his application that r 4.01(2) be dispensed with, together with any affidavit in opposition to the winding up application.

7    I have determined to treat Mr De Simone as having applied to review the decision dismissing his application to dispense with the rule, notwithstanding he did not file an application in writing. I have decided to dispense with r 4.01(2) and allow Mr De Simone to represent Compumark. Contrary to his submissions I have decided to order the winding up of Compumark.

The application for leave to appear

8    Rule 4.01(2) of the Rules provides:

A Corporation must not proceed in the Court other than by a lawyer.

9    By r 1.34 the Court may dispense with compliance with this rule. Mr De Simone relies on this provision in his application to represent Compumark. The Deputy Commissioner opposes the application.

Procedural history relevant to representation

10    The proceeding was commenced on 7 December 2011. It came before a Registrar of this Court on 15 March 2012 and Mr De Simone applied for an order dispensing with r 4.01(2). The further hearing of the proceeding and the application to dispense with r 4.01(2) was listed for hearing on 2 April 2012. Mr De Simone was ordered to file and serve any affidavits upon which he proposed to rely by 23 March 2012.

11    On 2 April 2012 the matter was again before a Registrar. Mr De Simone had not filed any affidavit in support of his application to dispense with r 4.01(2) and he was ordered to do so by 16 April 2012. The proceeding was adjourned to be heard on 26 April 2012.

12    On 26 April 2012 the matter was again before a Registrar. Mr De Simone had still not filed any affidavit in support of his application to dispense with r 4.01(2). His application to dispense with the rule was dismissed.

13    Under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (“FCA”) the Registrar’s decision to dismiss the application to represent Compumark may be considered afresh by a judge of the Court if an application for review is made within the time allowed by the Rules. Rule 3.11 provides that an application for review of a Registrar’s decision must be made within 21 days.

14    No application for review of the Registrar's order of 26 April 2012 has been filed. However, before me on 8 May 2012 and 10 May 2012 it was made clear in submissions to the Court that the company did seek a review. That application was still within the time limit prescribed by r 3.11.

15    Having regard to the fact that Compumark does not enjoy the benefit of a legally qualified representative, I consider that the absence of an application for review in writing should not be fatal to its rights. I shall treat the application made on 8 May 2012 as a properly made application for review.

Relevant legal principles

16    The authorities are mixed as to the operation of the discretion to allow a person to represent a company who is not legally qualified. Instances where a court has permitted a person who is not legally qualified to appear for a corporation are many: ACT General Cleaning Company Pty Ltd v Naoum (1996) 67 FCR 361; Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Limited [2012] FCA 363 (“Bayconnection”); London City Equities Ltd v Penrice Soda Holdings Ltd (No 3) [2012] FCA 361. The circumstances in Bayconnection are similar to those before the Court in this matter.

17    Instances where leave has been refused are also numerous and include the following: Hubbard Association of Scientologists International v Anderson [1972] VR 340; Re Education Pty Limited and the Companies Act [1963] NSWR 1340; Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 (“Termi-Mesh”); Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68; Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289.

18    Some cases suggest that the power to grant leave for a non-legally qualified agent to represent a company should be exercised “…only with the most meticulous care”: Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 (“Bay Marine”) at 111 per Samuels JA. See also Re G J Mannix Ltd [1984] 1 NZLR 309 at 314 per Cooke J. In Termi-Mesh French J (as he then was) proposed a more liberal approach, noting at [12] that no “…threshold requirement of special or exceptional circumstances” is imposed for exercise of this Court’s powers.

19    In Termi-Mesh French J at [13] identified seven relevant factors:

(a)    the financial capacity or lack of capacity of the corporation and those standing behind it;

(b)    the effect of diverting company resources to paying legal expenses;

(c)    the nature of the company’s undertaking;

(d)    its financial structure;

(e)    its ability to retain and pay its staff;

(f)    the identity and spread of its shareholders; and

(g)    the factual complexities of the case and the capacity of the proposed representative to conduct it effectively.

20    I found the detailed criteria set out by Forrest J in Worldwide Enterprises Pty Ltd v Silberman [2009] VSC 165 at [20] helpful. His Honour noted the following matters:

(a)    the manner in which the case has progressed to date;

(b)    the manner in which the case can proceed in the future without a solicitor;

(c)    the complexity of the issues involved in the case;

(d)    whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice

(e)    whether the case can be conducted in an orderly and responsible fashion without a solicitor;

(f)    whether there are financial considerations which would inhibit a company from obtaining legal representation;

(g)    the stage which the case has reached;

(h)    whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company; and

(i)    the effect, if any, on court resources and in particular on other litigants in the Court list if the company were to appear without a solicitor.

21    Taking these criteria into account I have decided to dispense with r 4.01(2) and allow Mr De Simone to represent Compumark. Seven factors were of significance to this decision.

22    One, it is appropriate for the orderly disposition of the proceedings that the company be represented. The affidavit filed and the submissions made on behalf of the company by Mr De Simone were of assistance and he put arguments before the Court which would not have been made if the company was not represented.

23    Two, Mr De Simone is the sole shareholder and office holder of Compumark. This is not a matter where his interests may be divergent from the interests of other shareholders or office holders of the company. A related factor is that his interests are also not divergent from Compumark’s interests as he is the “…sole director or the real force behind the company”: Helmhout v Apostoloff [2011] ACTSC 2 at [46] per Refshauge J.

24    Three, Mr De Simone is an appropriate person to represent the company because he has a detailed knowledge of the facts relevant to the application.

25    Four, Compumark is the respondent to this proceeding. That is, it is not before the Court unable to properly represent itself out of choice. In Termi- Mesh French J observed that the discretion to grant leave might be more liberally approached where the party in question is a respondent.

26    Five, it became clear as the application proceeded that if Mr De Simone represented Compumark the hearing could proceed in an orderly fashion. Mr De Simone conducted himself appropriately. He informed the Court that, although not legally qualified, he has substantial court experience having appeared in applications in the High Court, in a committal hearing in the Magistrates Court of Victoria, in the interlocutory stages of a criminal trial in the County Court of Victoria, and in the civil penalty proceedings brought by the Fair Work Ombudsman in the Magistrates Court of Victoria.

27    Six, Compumark is apparently unable to afford legal representation. In his affidavit sworn 9 May 2012 Mr De Simone deposes that the only asset of the company is a parcel of shares valued at about $23,000 but mortgaged for a substantially higher value. I note though that this financial information was incomplete as he did not depose to his own financial capacity as required by the test in Termi-Mesh. It cannot be doubted that Mr De Simone stands behind Compumark.

28    Seven, although the issues in the application are not without complexity Mr De Simone plainly has a good working knowledge of the taxation legislation, the company insolvency provisions of the Act, and of civil procedure generally. He had no apparent difficulty in making complex submissions in opposition to winding up.

29    The Deputy Commissioner contends that a factor against dispensing with the rule is that Mr De Simone also seeks to appear representing his own interests as a creditor of the company as well as on behalf of the company. This creates the possibility that in the application he may represent his own interests rather than the company’s interests. However, I accept Mr De Simone’s submission that, because he also opposes winding up when wearing his creditor’s hat, his interests as a creditor and the interests of the company are coincident.

30    A factor militating against dispensing with r 4.01(2) is the fact that Mr De Simone has not shown a proper understanding of the importance of compliance with orders and fixtures of the Court. He did not comply with the orders of the Registrar made on two occasions to file affidavits in support of his application to dispense with the rule, and was not ready to appear on 8 May 2012.

31    In Bay Marine Samuels JA held as follows at 110:

Although from time to time, in matters of procedure or practice or not of great complexity, the Court has permitted a corporation to appear by an unqualified agent, the rule has in other respects been consistently and strictly applied. The reasons for the rule are many, amongst them that otherwise it might be open to an unqualified person to appear for a corporation without any authority, and as my brother Mahoney pointed out during the argument, to render it liable to large impositions for costs, again without authority. In addition, and this is a consideration of great importance in the present case, as Sir Robin Cooke pointed out in Re G J Mannix Ltd [1984] 1 NZLR 309 at 314:

…

In general, and without attempting to work out hard-and-fast rules, discretionary audience should be regarded, in my opinion, as a reserve for occasional expedient, for use primarily in emergency situations when counsel is not available, or in straightforward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on counsel.”

32    In my view Mr De Simone increased the costs burden on Compumark by failing to comply with orders of the Registrar to file an affidavit which caused adjournments, and by failing to be ready for the hearing on 8 May 2012. While this is of concern, his failures in this regard are insufficient to outweigh the factors in favour of dispensing with the rule.

The application for winding up

33    The tax debt of $51,234.47 which is the debt underpinning the winding up application is comprised of the following assessments:

(a)    superannuation guarantee charge assessments totalling $36,972.15; and

(b)    assessments recorded in Compumark’s running balance account totalling $14,262.32.

The Superannuation Guarantee Charge Assessment Debt relates to superannuation guarantee charges assessed for the various quarters commencing 1 January 2006 through to commencing 1 July 2007, which became payable on 28 April 2008. The Running Balance Account Deficit Debt relates to the running balance of Compumark’s assessed tax liabilities for the period prior to 30 August 2011.

Solvency of Compumark

34    It is not controversial between the parties that by operation of subs 459C(2)(a) there is a presumption that Compumark is insolvent. That is so regardless of the nature or character of the debt upon which the statutory demand is based. That is, it does not matter whether the statutory demand is based on a tax debt or some other type of debt. The presumption of insolvency renders Compumark liable to be wound up in accordance with ss 459 P and 459Q.

35    The onus of establishing solvency rests with Compumark. In order to discharge this onus the courts generally insist on the “fullest and best” evidence of the financial position of the company: see Ace Contractors and Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 per Weinberg at [44], which was cited with approval by the New South Wales Court of Appeal in Expile Pty Ltd v Jabb’s Excavations Pty Ltd (2003) 45 ACSR 711 at [4] and [16]. However, as illustrated by another case involving Mr De Simone, the courts may allow a lesser standard depending on the circumstances: Deputy Commissioner of Taxation v De Simone Consulting Proprietary Ltd [2007] FCA 548 per Finkelstein J at [11]-[15].

36    There is no issue in this case as to whether the evidence submitted is the “fullest and best” or is otherwise sufficient, as Compumark has produced no evidence at all which is capable of establishing its solvency. No financial records of the company which recorded its financial position and performance are before the Court. The only evidence before me is that Mr De Simone’s affidavit evidence that the only asset held by the company is a parcel of shares which are mortgaged to well more than their value. No documentary evidence in support has been produced. Mr De Simone informed the Court that the company has no cash at bank and that it has accrued greater debts to both he and his wife than the debts claimed by the Deputy Commissioner and the FWO. The company has not been trading since 30 June 2011 and accordingly has no income either.

37    Rather than indicating that he company is solvent, the thrust of Compumark’s application to dispense with r 4.01(2) is that it has so little money it cannot even afford a solicitor for a one day winding up hearing.

38    Compumark concedes that it is unable to pay the tax debt. It says though that it has a reasonably arguable case disputing the tax debt which I will deal with later. However the Deputy Commissioner argues, and I accept, that even if the tax debt is not due Compumark is still insolvent because of its debt to the Fair Work Ombudsman.

The Fair Work Ombudsman debt

39    In a civil penalty proceeding in the Magistrates Court the Fair Work Ombudsman (“FWO”) claimed that Compumark, the first defendant in the proceeding, failed to make superannuation contributions on behalf of its employees as required by the Superannuation Guarantee (Administration) Act 1992 (Cth), which was a breach of the relevant Award and the Workplace Relations Act 1996 (Cth). Mr De Simone was the second defendant in the proceeding as it was claimed that he was “involved in” Compumark’s breaches.

40    In a decision which Compumark argues is contrary to the provisions of s 4(3B) of the Magistrates Court Act 1989 (Vic), Mr De Simone was refused leave to appear for Compumark on the basis that he is not a legal practitioner. Compumark was then unrepresented in the proceeding. Mr De Simone represented himself and was noted to have vigorously contested the proceedings. Following hearings over some days, on 2 September 2010 the Court found against all defendants and on 1 December 2010 made orders imposing a civil penalty of $99,000 on Compumark.

41    On 20 December 2010 Mr De Simone filed an Application for Rehearing in the Magistrates Court. He sought that the orders be set aside, including the $99,000 penalty against Compumark. On 2 June 2011 Magistrate Hawkins refused the application. Her Honour however granted a stay of 30 days pending any appeal to the Supreme Court, also noting that the rehearing application was made by Mr De Simone personally rather than by Compumark.

42    Mr De Simone was then informed by the solicitors for the FWO that the appropriate forum for an appeal was likely the Federal Court rather than the Supreme Court. Mr De Simone informed me that on 21 July 2011 he attended the Federal Court registry to file an appeal but was not permitted to do so because the appeal was outside the 21 day time limit. He says that he was advised by Court registry staff that he would have to file an application for an extension of time if he wanted to proceed.

43    Neither Mr De Simone nor Compumark ever applied for an extension of time within which to appeal. He now seeks to argue that he did not do so because he was waiting on the consent of the FWO to his application. However, the correspondence to him from the solicitors for the FWO is clear that the FWO did not consent to either a rehearing before the Magistrates Court or to an appeal to a superior court.

44    On 28 December 2011 Compumark filed another Application for Rehearing in the Magistrates Court, contending that the decision to not allow Mr De Simone to appear for it was in contravention of s 4(3B) of the Magistrates Court Act, and a breach of procedural fairness. It again sought that the orders of 1 December 2010 be set aside, including the $99,000 penalty. On 30 January 2012 Magistrate McNamara rejected the application. His Honour however ordered a stay of 21 days pending any appeal to the Federal Court.

45    Despite the grant of a stay Compumark still did not file an appeal with the Court. Notwithstanding its failure to properly pursue its appeal rights Compumark now submits that this debt should not be taken into account in determining whether Compumark is insolvent but for the tax debt. I do not accept this submission. The FWO is a judgment creditor and Compumark admits that it cannot meet this debt.

46    Contrary to Compumark’s submissions, while it is unnecessary for me to reach any concluded view on this issue, even if it is accepted that the Magistrates Court erred in refusing to allow Mr De Simone to appear for Compumark in the civil penalty proceeding it does not follow that the penalty imposed necessarily stands to be set aside. It appears from the reasons for judgment of the learned Magistrate Hawkins that the arguments advanced by Mr De Simone – who controlled the company - are the same arguments that would have been advanced for Compumark had it been represented. Those arguments were considered and rejected by the Court.

47    Mr De Simone seeks to explain Compumark’s failure to pursue it appeal rights by arguing that he was distracted by criminal proceedings against him in the County Court (which proceedings he notes were dismissed). He correctly notes that if the company is wound up its rights to set aside the Magistrate’s Court order will effectively be lost. Compumark argues that the winding up proceedings should be adjourned to enable it to now file an appeal in the Federal Court. I do not accept this submission. The judgment in the matter was given almost a year and a half ago, a stay has twice been granted to enable an appeal to be commenced, and no adequate explanation has been given for Compumark’s failure to commence any appeal. Given the opportunities that Compumark has had to commence on appeal which it did not take up, the application for winding up should not now be adjourned on the purported basis that Compumark now wants to exercise those rights.

Conclusion re-solvency

48    If Compumark is insolvent it should be wound up in insolvency. As Compumark has failed to rebut the presumption that it is insolvent I consider that a winding up order ought be made. The question of whether Compumark has a reasonably arguable case only arises if, but for the tax debt, it would be solvent. In my view it is insolvent.

Does Compumark have a reasonably arguable case

49    However, even if I accept that Compumark is solvent but for the tax debt, it does not have a reasonably arguable case in relation to the debt. In Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 (“Broadbeach”) the Deputy Commissioner conceded, as the majority noted at [13], that:

Notwithstanding the presumption of insolvency that would apply under s 459C(2)(a)…upon the hearing of such winding up applications the court might properly have regard to whether the taxpayer had a “reasonably arguable” case in proceedings under Pt IVC of the Administration Act, if those proceedings then still be on foot; questions of the kind canvassed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 might arise.

This means that any proceedings commenced by Compumark under Part IVC of the Tax Administration Act could be relevant as to whether to allow the application for winding up. However, Compumark has not made any such application.

Submissions by Compumark

50    Notwithstanding its failure to commence any proceeding under Pt IVC, Compumark contends that it has a good argument as to why the tax debt is not due. It argues that the merits of its argument are such that the Court should exercise its discretion to refuse to wind up the company. In the alternative it seeks that the application for winding up be adjourned pursuant to s 459R of the Act. It is common ground between the parties that a residual discretion exists in the Court to refuse to wind up a company notwithstanding doubts as to its solvency: see The Orleans Marketing Co Pty Ltd v Neydharding Moor (Australia) Pty Ltd (1985) 3 ACLC 147; In re Southard & Co Ltd [1979] 1 WLR 1198.

The Superannuation Guarantee Charge Assessment Debt

51    The superannuation guarantee charge assessments were made following an audit of Compumark’s compliance with its superannuation obligations in about 2008. It then became apparent that Compumark had not paid superannuation guarantee charges by the due date. Compumark says it paid the contributions later, which the Deputy Commissioner does not dispute.

52    Compumark contends it is entitled to an offset for these late contributions against the superannuation guarantee charge assessments which would very substantially reduce them. The Deputy Commissioner does not argue that Compumark is not entitled to a late contributions offset, stating only that for this issue to be considered Compumark is required to complete an appropriate form making the claim.

53    Compumark contends that issuing assessments in relation to the superannuation guarantee charges when the contributions had already been paid, albeit late, evidences a pedantic, oppressive and annoying approach by the Deputy Commissioner. In a response which Mr De Simone concedes is “bloody-minded” Compumark has refused to complete the approved application form so as to obtain any available offset.

54    It argues that the appropriate outcome is that the Court should refuse to wind up the company given that the superannuation guarantee charges forming the debt have in fact been paid. In the alternative, it says the winding up application should be adjourned so as it can now complete the approved form making a claim for an offset for its late contribution.

The Running Balance Account Deficit Debt

55    Compumark accepts that it owes the base amount owing on its running balance of approximately $11,000, but argues that it is not liable for the interest accrued. It argues against any obligation to pay the interest as it says that it would have paid the base amount except that it was in dispute with the Deputy Commissioner with regard to the superannuation guarantee charge assessments. It took the position that it would not pay the debt unless its dispute with the Deputy Commissioner regarding the superannuation guarantee charge assessments was also resolved. It argues that it is not required to pay the interest because it only accrued as a result of the failure of the Deputy Commissioner to be reasonable in the other dispute.

56    Again, Compumark argues that the Court should refuse to wind up the company on the basis of the superannuation guarantee charge assessments. While its position is not entirely clear, it appears that if the company is not wound up, or if the winding up is adjourned to enable Compumark to apply using the approved form, Compumark says it will pay the outstanding base amount.

Consideration

57    I reiterate the view I expressed above that, in the absence of any evidence rebutting the presumption of Compumark's insolvency, the winding up order should be made. However, even if I treat the company as solvent but for the tax debt, Compumark’s arguments disputing the tax debt have little merit.

58    Contrary to Compumark’s submission the Deputy Commissioner did not have a discretion to overlook a failure to make the required payment of superannuation contributions by the due date (see Re Jarra Hills Pty Ltd and Federal Commissioner of Taxation (1997) 37 ATR 1022 at 1024) or to take into account the late payment made (see Re Williams v Federal Commissioner of Taxation [2005] 58 ATR 1298 at 1303). Accordingly, it was not “bloody-minded” of the Deputy Commissioner to make the assessments that he did.

59    Compumark could have elected to use its late superannuation contributions to offset the assessed shortfall in specified circumstances, but did not do so. Section 23A(1) of the Superannuation Guarantee (Administration) Act 1992 (Cth) provides as follows:

Offsetting late payments against charge

A contribution to a complying superannuation fund or an RSA made by an employer for the benefit of an employee is offset under subsection (3) if:

(a)    the contribution is made:

(i)    after the end of the period of 28 days after the end of a quarter; and

(ii)    before the employer’s original assessment for that quarter is made; and

(b)    the employer elects, in the approved form, that the contribution be offset.

(Emphasis added)

60    Compumark never made an application on the approved form. In evidence was a letter to Compumark from the Australian Taxation Office dated 30 March 2012 advising it of the requirement to make the application, and offering a two week adjournment of these proceedings in order for it to do so. Compumark did not accept the invitation.

61    Even if I accept Mr De Simone’s characterisation of the Deputy Commissioner’s conduct as “pedantic” or “bloody minded”, Compumark’s attempt to use the winding up proceeding as the vehicle for its complaint about this conduct is completely against the policy behind Part 5.4 of the Act. The Part is plainly aimed at ensuring that any disputes about debts are dealt with at an early stage rather than operating to delay winding up: Explanatory Memorandum of the Corporate Law Review Bill para 689; Chief Commissioner of Stamp Duties v Paliflex Pty Ltd (1999) 17 ACLC 467, 149 FLR 179 at [57].

62    The appropriate course for Compumark was to complete the approved form and seek any late contributions offset to which it was entitled. If it was unhappy with that result it should have challenged the assessment under Pt IVC of the Tax Administration Act.

63    I do not accept Compumark’s argument that the Court should now adjourn the winding up application so as to allow it to make its application to the Deputy Commissioner using the approved form. It has had ample opportunity to make such an application, including the invitation by letter which included an offer to adjourn this proceeding to enable the application to be processed.

64    Compumark’s refusal to pay the Running Balance Account Deficit Debt of $14,262.32 also cannot be justified. It accepts that it at least owes approximately $11,000, but has failed or refused to pay even that amount. I do not accept its argument that it does not owe the interest on the base amount because the interest only accrued through the dispute about the superannuation guarantee charge assessments. In my view the interest accrued because Compumark wrongly refused to pay the base amount assessed. This is not a factor in favour of refusal of the application to wind up the company, and it does not constitute a basis for adjournment of the winding up application.

65    Unlike Bayconnection, which is relied on by Compumark, and many of the other authorities, there are no proceedings under Part IVC on foot in this matter. In reality, although the assessments are not recent, Compumark has taken no step to formally oppose them, not even properly objecting, let alone issuing proceedings under Pt IVC. The arguments might be seen as little more than a late effort to stave off or delay the winding up.

66    There are reasons which may justify the Court in refusing to order a winding up, or adjourning an application, even when a company may be insolvent: Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd (2008) NSWSC 3 at [192]. However, in the circumstances of this case, to refuse to wind up the company or to adjourn that application is to prejudice the collection of the revenue without good reason. I am not inclined to exercise my discretion to do so: see Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 at 139 per French J. I note too that there is little point adjourning the winding up applications as Compumark is insolvent anyway because of the FWO debt.

67    I make the orders sought by the Deputy Commissioner.

Associate:

Dated:    5 June 2012