Kerrco Pty Ltd (ACN 071 158 202) (In Liquidation) v Deputy Commissioner of Taxation [2005] FCA 1917

Kerrco Pty Ltd (ACN 071 158 202) (In Liquidation) v Deputy Commissioner of Taxation [2005] FCA 1917

Because the company did not apply within 21 days to set aside the statutory demand and no power to extend time was identified, the statutory demand took effect. Non-compliance prima facie established insolvency, the company made no attempt to demonstrate solvency, and its complaints about concessions or negotiations could not extinguish the substantial tax debt or affect the Deputy Commissioner's entitlement to seek winding up. The Deputy Registrar's order was therefore correct.

Jurisdiction
Australia
Judgment Date
14 December 2005
Procedural Posture
Application for Review of a Winding Up Order Made by a Deputy Registrar / Application Dismissed
Outcome
The application was dismissed with costs.
Legal Topics
['winding Up Order' 'statutory Demand' 'presumption of Insolvency' 'time Limit to Set Aside Statutory Demand' 'tax Debt']
['corporations Law' 'insolvency' 'taxation'] ['winding Up Order' 'statutory Demand' 'presumption of Insolvency' 'time Limit to Set Aside Statutory Demand' 'tax Debt']

Case Brief

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Procedural Posture

Application for Review of a Winding Up Order Made by a Deputy Registrar / Application Dismissed

Legal Issues

  1. 1 ['Whether the winding up order made by the Deputy Registrar should be reviewed or disturbed.' 'Whether complaints about withdrawal of drought concessions and alleged deprivation of a right to negotiate repayment could affect the winding up order.' 'Whether the company could oppose the winding up order after failing to apply to set aside the statutory demand within 21 days.' 'Whether the company demonstrated solvency.']

Ratio Decidendi

Because the company did not apply within 21 days to set aside the statutory demand and no power to extend time was identified, the statutory demand took effect. Non-compliance prima facie established insolvency, the company made no attempt to demonstrate solvency, and its complaints about concessions or negotiations could not extinguish the substantial tax debt or affect the Deputy Commissioner's entitlement to seek winding up. The Deputy Registrar's order was therefore correct.

Court Disposition

The application was dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant/defendant pay the respondent/plaintiff's costs of the application."]