Deputy Commissioner of Taxation v Kele Hire & Sales Pty Ltd

69 ATR 254
[2008] NSWSC 12

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(Judgment by: Campbell JA)

Deputy Commissioner of Taxation
vKele Hire & Sales Pty Ltd

Court:

Judge:
Campbell JA

Case References:
Re Norper Investments Pty Ltd - (1977) 33 FLR 87; 15 ALR 603; 7 ATR 488; 77 ATC 4212; 2 ACLR 453
Neutral Bay Pty Ltd v Deputy Commissioner of Taxation - [2007] QCA 312
Neutral Bay Pty Ltd v Deputy Commissioner of Taxation - (2007) 25 ACLC 1341; 68 ATR 886

Hearing date:
Judgment date: 21 January 2008

Sydney

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Judgment by:
Campbell JA

Ex tempore

[1] The matter before the court today is an interlocutory process in proceedings where the Deputy Commissioner of Taxation seeks to wind up the defendant. Today's application seeks to restrain the plaintiff from winding up the defendant, and various consequential or supplementary orders.

[2] It arises in an unusual situation. The defendant was audited by the Commissioner last year, resulting in there being some assessments of GST issued that were supplementary to those that had been already paid. There has, after some delay, now come to be an appeal to the Federal Court against the Commissioner's denial of objections to those GST assessments, and also an appeal to the Federal Court concerning the 2001 income tax return of the defendant. The last of those appeals was lodged only on Friday of last week.

[3] While this matter was commenced on 12 July 2007, it was commenced by an entity other than the Deputy Commissioner. The Deputy Commissioner came to be substituted by order made on 8 October 2007.

[4] I sought to ascertain from the legal representatives here today the attitude that they have to certain factual matters relevant to the case. The representative of the Commissioner was not able to tell me the Commissioner's view about whether the appeals to the Federal Court are ones that are reasonably arguable. Given the comparative lateness with which at least one of the appeals was lodged, that is not a basis on which I criticise the Commissioner. Nonetheless whether the appeals are ones which can be fairly argued is a matter that can be relevant to how the court should approach a matter like the present: Re Norper Investments Pty Ltd (1977) 33 FLR 87 at 92-93; 15 ALR 603 at 607-608; 7 ATR 488 at 492; 77 ATC 4212 at 4216; 2 ACLR 453 at 456-457; Neutral Bay Pty Ltd v Deputy Commissioner of Taxation [2007] QCA 312;Neutral Bay Pty Ltd v Deputy Commissioner of Taxation (2007) 25 ACLC 1341 at 1343 [8] and 1345 [11]; 68 ATR 886 at 889-890 [8] and 890 [11].

[5] The matter is one which involves some complexity, both of fact and law. The defendant seeks to have the opportunity of also putting on some evidence to demonstrate solvency.

[6] Given the length of time that the matter has been on foot, and that there is no immediate urgency about it, I am not persuaded that this is a matter that warrants a hearing in the vacation.

[7] It was necessary for the matter to come back before the court today, because on 17 December 2007, the originating process was extended only until today.