In the matter of Ursidae Pty Ltd formerly trading as Powerfab Engineering (in liquidation) -v- Commissioner of Taxation [2012] NSWSC 172

In the matter of Ursidae Pty Ltd formerly trading as Powerfab Engineering (in liquidation) -v- Commissioner of Taxation [2012] NSWSC 172

Where the Commissioner receives payments constituting voidable transactions from a company later wound up, and admits the payments' character, an order may be made for repayment to the company. The Commissioner is statutorily entitled to indemnity from directors for specified tax liabilities repaid by order under s 588FF.

Parties
First Plaintiff: Ursidae Pty Ltd formerly trading as Powerfab Engineering (in liquidation) ACN 55 103 686 988; Second Plaintiff: Neil Robert Cussen in his capacity as liquidator of Ursidae Pty Ltd formerly trading as Powerfab Engineering (in liquidation) ACN 55 103 686 988; Defendant/applicant: Commissioner of Taxation; First Respondent: Wayne David Slender; Second Respondent: Karen Gayle Slender
Jurisdiction
Australia
Judgment Date
13 February 2012
Procedural Posture
Corporations List (equity Division) / Judgment at First Instance
Outcome
Judgment for plaintiffs; Commissioner to pay company; directors to indemnify Commissioner.
Legal Topics
Voidable Transactions, Unfair Preference, Insolvency, Director Indemnity, Set Aside Transactions
Corporations Law Taxation Law Voidable Transactions Unfair Preference Insolvency Director Indemnity Set Aside Transactions

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Parties

Ursidae Pty Ltd formerly trading as Powerfab Engineering (in liquidation) ACN 55 103 686 988

First Plaintiff

Neil Robert Cussen in his capacity as liquidator of Ursidae Pty Ltd formerly trading as Powerfab Engineering (in liquidation) ACN 55 103 686 988

Second Plaintiff

Commissioner of Taxation

Defendant/applicant

Wayne David Slender

First Respondent

Karen Gayle Slender

Second Respondent

Procedural Posture

Corporations List (equity Division) / Judgment at First Instance

Legal Issues

  1. 1 Whether payments to Commissioner were voidable transactions under s 588FE of the Corporations Act 2001 (Cth)
  2. 2 Whether Commissioner is liable to repay the sum received as unfair preference or uncommercial transaction
  3. 3 Whether directors are liable to indemnify Commissioner under s 588FGA

Ratio Decidendi

Where the Commissioner receives payments constituting voidable transactions from a company later wound up, and admits the payments' character, an order may be made for repayment to the company. The Commissioner is statutorily entitled to indemnity from directors for specified tax liabilities repaid by order under s 588FF.

Court Disposition

Judgment for plaintiffs; Commissioner to pay company; directors to indemnify Commissioner.

Orders

  • Defendant is to pay to the company $196,803 plus interest and costs.
  • The directors are to indemnify the defendant for $129,561 plus interest and costs.