Dean-Willcocks v Commissioner of Taxation [2008] NSWSC 1113

Dean-Willcocks v Commissioner of Taxation [2008] NSWSC 1113

The Commissioner established the elements of s 588FG(2). The payments were not unfair loans or unreasonable director-related transactions; the Commissioner received them in good faith in the due, proper and regular exercise of statutory functions; and valuable consideration was provided by operation of s 588FG(3). Considering the whole of the knowledge and information held within the ATO, including Fashion Warehouse's prior deed of company arrangement, post-deed compliance, April 2004 default, request for a short instalment arrangement, explanations of slow trading and short-term cashflow problems, overdue returns and the ATO's insolvency notation, neither the Commissioner nor a...

Jurisdiction
Australia
Judgment Date
24 October 2008
Procedural Posture
Application by Liquidators Under S 588 Ff(1) of the Corporations Act 2001 (cth) for an Order That the Commissioner of Taxation Pay Money to Fashion Warehouse in Respect of Alleged Unfair Preferences / Principal Judgment on Originating Process
Outcome
Originating process dismissed with costs; interlocutory process under s 588FGA also dismissed.
Legal Topics
['winding Up' 'unfair Preferences' 'insolvent Transactions' 'defence Under S 588 Fg(2)' 'reasonable Grounds for Suspecting Insolvency' 'deed of Company Arrangement' 'australian Taxation Office Knowledge']
['corporations Law' 'insolvency' 'taxation'] ['winding Up' 'unfair Preferences' 'insolvent Transactions' 'defence Under S 588 Fg(2)' 'reasonable Grounds for Suspecting Insolvency' 'deed of Company Arrangement' 'australian Taxation Office Knowledge']

Case Brief

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Procedural Posture

Application by Liquidators Under S 588 Ff(1) of the Corporations Act 2001 (cth) for an Order That the Commissioner of Taxation Pay Money to Fashion Warehouse in Respect of Alleged Unfair Preferences / Principal Judgment on Originating Process

Legal Issues

  1. 1 ['Whether s 588FG(2) precluded the court from making an order under s 588FF(1) in relation to payments by Fashion Warehouse to the Commissioner of Taxation.' 'Whether, at the time of each challenged payment, the Commissioner had no reasonable grounds for suspecting that Fashion Warehouse was insolvent or would become insolvent because of the payment or matters including the payment.' "Whether a reasonable person in the Commissioner's circumstances would have had no reasonable grounds for suspecting insolvency."]

Ratio Decidendi

The Commissioner established the elements of s 588FG(2). The payments were not unfair loans or unreasonable director-related transactions; the Commissioner received them in good faith in the due, proper and regular exercise of statutory functions; and valuable consideration was provided by operation of s 588FG(3). Considering the whole of the knowledge and information held within the ATO, including Fashion Warehouse's prior deed of company arrangement, post-deed compliance, April 2004 default, request for a short instalment arrangement, explanations of slow trading and short-term cashflow problems, overdue returns and the ATO's insolvency notation, neither the Commissioner nor a...

Court Disposition

Originating process dismissed with costs; interlocutory process under s 588FGA also dismissed.

Orders

  • ['The originating process is dismissed with costs.' "The Commissioner's interlocutory process under s 588FGA is dismissed."]