Gail Freeman & Co Pty Limited ACN 008 653 683 (In Liquidation) v Deputy Commissioner of Taxation [2007] FCA 1381

Gail Freeman & Co Pty Limited ACN 008 653 683 (In Liquidation) v Deputy Commissioner of Taxation [2007] FCA 1381

The application under s 471A was refused because no viable ground of appeal against the winding up order was demonstrated, including in relation to the amended assessment, insolvency, s 467, or abuse of process, and because no point would be served by allowing an appeal against the order to wind up the insolvent company.

Jurisdiction
Australia
Judgment Date
18 July 2007
Procedural Posture
Application Pursuant to S 471 a of the Corporations Act 2001 (cth) for Approval of the Exercise of a Board Function by a Company in Liquidation in Connection With an Appeal Against a Winding Up Order / Notice of Motion Filed on 12 July 2007, Heard on 18 July 2007
Outcome
Application refused; motion dismissed; Gail Freeman ordered to pay the costs of the two respondents.
Legal Topics
['approval Under S 471 a for Exercise of Board Function in Liquidation' 'statutory Demand' 'winding Up Petition' 'insolvency' 'superannuation Guarantee Assessment' 'costs']
['corporations Law' 'insolvency and Winding Up' 'taxation'] ['approval Under S 471 a for Exercise of Board Function in Liquidation' 'statutory Demand' 'winding Up Petition' 'insolvency' 'superannuation Guarantee Assessment' 'costs']

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Procedural Posture

Application Pursuant to S 471 a of the Corporations Act 2001 (cth) for Approval of the Exercise of a Board Function by a Company in Liquidation in Connection With an Appeal Against a Winding Up Order / Notice of Motion Filed on 12 July 2007, Heard on 18 July 2007

Legal Issues

  1. 1 ['Whether Gail Freeman should be approved under s 471A of the Corporations Act 2001 (Cth) to cause the company in liquidation to appeal against the winding up decision.' "Whether an amended assessment issued after the statutory demand and filing of the winding up petition affected the Commissioner's entitlement to prosecute the petition." 'Whether there was a viable ground of appeal against the finding that the company was insolvent.' 'Whether there was a viable ground of appeal based on s 467 or abuse of process.' 'Whether approval should be refused because no point would be served by allowing an appeal against the order to wind up an insolvent company.']

Ratio Decidendi

The application under s 471A was refused because no viable ground of appeal against the winding up order was demonstrated, including in relation to the amended assessment, insolvency, s 467, or abuse of process, and because no point would be served by allowing an appeal against the order to wind up the insolvent company.

Court Disposition

Application refused; motion dismissed; Gail Freeman ordered to pay the costs of the two respondents.

Orders

  • ['Gail Freeman be joined as an applicant to the notice of motion filed on 12 July 2007;' 'the company Gail Freeman & Co Pty Ltd become a respondent to the above motion;' 'the application by Gail Freeman in relation to s 471A of the Corporations Act 2001 (Cth) be refused and the motion filed on 12 July 2007 be...