Hurricane Formwork Pty Ltd (In Liquidation) ACN 095 391 423 v Commissioner of Taxation [2009] FCA 133

Hurricane Formwork Pty Ltd (In Liquidation) ACN 095 391 423 v Commissioner of Taxation [2009] FCA 133

The Court was satisfied from the liquidator's evidence that the Company was insolvent when the six payments were made, that the liquidator's application was filed within time, and that the payments were voidable transactions. Because $67,731.18 of the $116,830.00 was applied to PAYG withholding obligations within s 588FGA(1), and Mr Harris and Mr MacKellar were directors when the payments were made and established no defence under s 588FGB, they were liable to indemnify the Commissioner for that amount.

Jurisdiction
Australia
Judgment Date
20 February 2009
Procedural Posture
Corporations Law Application Concerning Voidable Transactions and Indemnity Under the Corporations Act 2001 (cth) / Final Judgment and Orders on Liquidator's Application and Commissioner's Indemnity Application
Outcome
Orders made requiring the Commissioner to pay $116,830.00 to the first plaintiff and requiring the second and third defendants to indemnify the Commissioner in the sum of $67,731.18, with costs and interest; no relief was sought against the fourth and fifth defendants.
Legal Topics
['voidable Transactions' 'insolvent Transactions' 'liquidator Recovery' 'commissioner of Taxation' 'director Indemnity' 'payg Withholding Liabilities']
['corporations Law' 'insolvency' 'taxation'] ['voidable Transactions' 'insolvent Transactions' 'liquidator Recovery' 'commissioner of Taxation' 'director Indemnity' 'payg Withholding Liabilities']

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Procedural Posture

Corporations Law Application Concerning Voidable Transactions and Indemnity Under the Corporations Act 2001 (cth) / Final Judgment and Orders on Liquidator's Application and Commissioner's Indemnity Application

Legal Issues

  1. 1 ['Whether six payments made by the Company to the Commissioner during the six month period before the winding up application were voidable transactions under s 588FE of the Corporations Act 2001 (Cth).' 'Whether the Commissioner should be ordered under s 588FF(1) of the Corporations Act 2001 (Cth) to pay $116,830.00 to the Company or liquidator.' 'Whether Wayne Arthur Harris and Thomas MacKellar, as directors when the payments were made, were liable under s 588FGA(2) of the Corporations Act 2001 (Cth) to indemnify the Commissioner for $67,731.18 relating to PAYG withholding liabilities.' 'Whether any defence under s 588FGB of the Corporations Act 2001 (Cth) was established.']

Ratio Decidendi

The Court was satisfied from the liquidator's evidence that the Company was insolvent when the six payments were made, that the liquidator's application was filed within time, and that the payments were voidable transactions. Because $67,731.18 of the $116,830.00 was applied to PAYG withholding obligations within s 588FGA(1), and Mr Harris and Mr MacKellar were directors when the payments were made and established no defence under s 588FGB, they were liable to indemnify the Commissioner for that amount.

Court Disposition

Orders made requiring the Commissioner to pay $116,830.00 to the first plaintiff and requiring the second and third defendants to indemnify the Commissioner in the sum of $67,731.18, with costs and interest; no relief was sought against the fourth and fifth defendants.

Orders

  • ['The first defendant pay the first plaintiff the sum of $116,830.00.' 'Payment of the sum referred to in para 1 be made within 28 days of the date of service of this order on the first defendant.' 'There be no order as to costs as between the first and second plaintiffs and the first defendant.' 'The second...