Deputy Commissioner of Taxation v EFX Advisory Pty Ltd [2019] FCA 1885

FEDERAL COURT OF AUSTRALIA

File number:	NSD 1452 of 2019

Judge:	JAGOT J

Date of judgment:	12 November 2019

Catchwords:	CORPORATIONS – application to terminate winding up of company – circumstances where the liquidator does not consent nor oppose the orders sought – Corporations Act 2001 (Cth) s 483(1) – application allowed.

Legislation:	Corporations Act 2001 (Cth) s 482(1)

Cases cited:	Judson, in the matter of Maneroo Pty Ltd (in liq) [2015] FCA 783

Date of hearing:	12 November 2019

Registry:	New South Wales

Division:	General Division

National Practice Area:	Commercial and Corporations

Sub-area:	Corporations and Corporate Insolvency

Category:	Catchwords

Number of paragraphs:	5

Counsel for the Plaintiff	Mr D Olthof

Solicitor for the Plaintiff	Hunt & Hunt

Counsel for the Applicant	Mr M Klooster

Solicitor for the Applicant	HP Legal Pty Ltd

Counsel for the Defendant	Mr D Mitchell

ORDERS

		NSD 1452 of 2019

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff TYSON CARTILLA-HAO Applicant
AND:	EFX ADVISORY PTY LTD (ACN 612 286 825) Defendant

JUDGE:	JAGOT J
DATE OF ORDER:	12 NOVEMBER 2019

THE COURT ORDERS THAT:

1. On condition that the Cheque is honoured upon presentation, pursuant to section 482(1) of the Corporations Act 2001 (Cth), the winding up of the Defendant be terminated from the date of this Order.

2. In the event that the Cheque is dishonoured, the Plaintiff have liberty to apply on 3 days’ notice.

3. The Applicant pay the Plaintiff’s costs of the Interlocutory Process filed on 11 November 2019 fixed in the amount of $2,000.00.

4. The Applicant notify ASIC of these Orders forthwith.

5. Leave is granted to ASIC to apply for the setting aside or variation of these Orders made within 14 days of its’ notification.

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

REASONS FOR JUDGMENT

JAGOT J:

1 This is an application pursuant to s 482(1) of the Corporations Act 2001 (Cth) (the Act), that the orders made on 16 October 2019 winding up the defendant be terminated.

2 Consistent with the oral submissions put by the applicant and the reasoning of Justice Gleeson in Judson, in the matter of Maneroo Pty Ltd (in liq) [2015] FCA 783, and in particular the relevant legal principles identified in [22], I accept that on the evidence that has been adduced, the following:

(1) the application for the termination of the winding up has been brought promptly;

(2) there has been or will be full payment of all creditors; and

(3) in the affidavit evidence, there has been an adequate explanation provided as to why the winding up occurred, which was in short an oversight in the office of the applicant’s accountant in respect of the location of the registered office for service of documents.

3 As a result, the documents relating to the winding up application are, and otherwise, were forwarded to a location which was no longer the registered office of the business. The evidence also establishes that procedures have been put in place to ensure that there is no recurrence. Finally, there is evidence of the solvency of the company showing that it has sufficient assets to meet its liabilities as and when they fall due.

4 In these circumstances, it is submitted for the applicant that the orders sought in Order 2 of the interlocutory process terminating the winding up should be made.

5 In my view, the defendant company should have the benefit of and an exercise of discretion in its favour pursuant to s 482(1) of the Act.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated: 12 November 2019

Top