Federal Court of Australia

Hodgson (Liquidator) v Commissioner of Taxation, in the matter of ACN 009 068 473 Pty Ltd (In Liquidation) (No 2) [2026] FCA 1266

ORDERS

THE COURT ORDERS THAT:

1.    The first defendant pay to ACN 009 068 473 Pty Ltd within 42 days of these orders being made $4,200,000.00, comprising:

(a)    $3,828,635.00 pursuant to s 588FF(1)(a) of the Corporations Act 2001 (Cth), being the sum of the Payments as set out in Column 3 of Sch 1 to these orders;

(b)    interest in the sum of $200,000.00; and

(c)    costs in the sum of $171,365.00.

2.    The plaintiffs' claim be otherwise dismissed.

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

Schedule 1

REASONS FOR JUDGMENT

VANDONGEN J:

1    In these proceedings the plaintiffs, who are the liquidators of ACN 009 068 473 Pty Ltd (Company), seek declarations that certain payments made by the Company to the first defendant, the Commissioner of Taxation, are unfair preferences for the purposes of s 588FA of the Corporations Act 2001 (Cth), insolvent transactions for the purposes of s 588FC and voidable transactions for the purposes of s 588FE(2). The plaintiffs also seek an order pursuant to s 588FF(1)(a) of the Corporations Act that the Commissioner pay to the Company the sum of $3,828,635.00, being the total of several amounts paid by the Company to the Commissioner between 10 May 2022 and 21 October 2022.

2    On 2 September 2026, the plaintiffs provided my associate with a 'Short Minute of Proposed Consent Orders' (Minute). The Minute was signed by the lawyers acting for the plaintiffs and by the lawyers acting for the Commissioner.

3    The orders sought in the Minute are in the following terms:

1.    The first defendant pay to the Company within 42 days of these orders being made $4,200,000, comprising:

(a)    $3,828,635 pursuant to section 588FF(1)(a) of the [Corporations Act], being the sum of the Payments as set out in Column 3 of Schedule 1 to these orders;

(b)    interest in the sum of $200,000; and

(c)    costs in the sum of $171,365.

2.    The plaintiffs' claim be otherwise dismissed.

4    Attached to the Minute is a schedule that sets out the various payments that comprise the total amount said to have been paid to the Commissioner, which are alleged to have been voidable because of s 588FE.

5    Section 588FF(1)(a) of the Corporations Act provides that where, on the application of a company's liquidator, a court is satisfied that a transaction of the company is voidable because of s 588FE, the court may make an order directing a person to pay to the company an amount equal to some or all of the money that the company has paid under the transaction. It may be noted that before exercising the power in s 588FF(1) a court must be satisfied that a transaction is voidable because of s 588FE. As Derrington J observed in Wight, in the matter of I-Prosperity Pty Ltd (in liq) v LZYH Investments Pty Limited [2022] FCA 209 at [7], there are some authorities that indicate that a court cannot be so satisfied based on consent orders. However, as his Honour also said, there is strong support for the proposition that a court may act on an admission: Dean-Willcocks Pty Ltd v Commissioner of Taxation (No 2) [2004] NSWSC 286 at [25] to [28]; Cooper v Commissioner of Taxation [2004] FCA 1063; (2004) 139 FCR 205 at [28] to [31]; Re Harris Scarfe Ltd (rec & mgrs apptd) (in liq) [2007] SASC 115; (2007) 97 SASR 377 at [16]. See also, In the matter of Bleecker Property Group Pty Ltd (In Liquidation) [2023] NSWSC 1071 at [14] to [15]. Like Derrington J, I am also of the view that the Court may act on an admission, including an admission made by signing a minute of consent orders.

6    Having regard to way in which the plaintiffs' claim is particularised in their originating process and statement of claim, I am of the view that by consenting to the orders sought in the Minute, the Commissioner has admitted that the various transactions set out in the schedule to the Minute are voidable because of s 588FE and that he is therefore liable to pay to the Company an amount equal to the total of those transactions. Based on that admission I am satisfied, for the purposes of s 588FF(1), that each of the transactions in that schedule is voidable because of s 588FE.

7    If a court makes an order under s 588FF(1)(a), then each person who was a director of the Company when the relevant transactions were made is liable to indemnify the Commissioner in respect of any loss of damage resulting from the order: subs (1) and (2) 588FGA. Accordingly, the directors of the Company may be prejudiced by the orders sought in the Minute because of the obligation to indemnify. However, the directors, each of whom were joined as defendants to these proceedings, has also either personally or by their legal representative signed the Minute indicating that they also consent to the orders being made.

8    In all of the circumstances, I am persuaded that it is appropriate to make the orders sought in the Minute.

Associate:

Dated:    9 September 2026