Bruton Holdings Pty Limited (in liquidation) v Commissioner of Taxation [2009] HCA 32

Bruton Holdings Pty Limited (in liquidation) v Commissioner of Taxation [2009] HCA 32

The Commissioner's general power to issue notice under s 260‑5 is not available after a liquidator has been appointed; instead, the specific provisions of s 260‑45 apply. s 260‑5 constitutes an attachment within the meaning of s 500(1) and is void if issued after the resolution for voluntary winding up.

Parties
Appellant: Bruton Holdings Pty Limited (in liquidation); First Respondent: Commissioner of Taxation; Second Respondent: Piper Alderman
Jurisdiction
Australia
Judgment Date
26 August 2009
Procedural Posture
Appeal / Judgment on Appeal From the Full Court of the Federal Court of Australia
Outcome
appeal allowed
Legal Topics
Recovery of Tax Debts, Company Winding Up, Attachment of Property, Priority of Payments, Statutory Interpretation
Taxation Corporations Insolvency Recovery of Tax Debts Company Winding Up Attachment of Property Priority of Payments Statutory Interpretation

Case Brief

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Parties

Bruton Holdings Pty Limited (in liquidation)

Appellant

Commissioner of Taxation

First Respondent

Piper Alderman

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal From the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 Whether s 260‑5 notice under the Taxation Administration Act 1953 (Cth) can be issued after commencement of winding up of a company
  2. 2 Whether steps taken by Commissioner are void and unenforceable as an 'attachment' within meaning of s 500(1) of Corporations Act 2001 (Cth)
  3. 3 Relationship between s 260‑5 and s 500(1)

Ratio Decidendi

The Commissioner's general power to issue notice under s 260‑5 is not available after a liquidator has been appointed; instead, the specific provisions of s 260‑45 apply. s 260‑5 constitutes an attachment within the meaning of s 500(1) and is void if issued after the resolution for voluntary winding up.

Court Disposition

appeal allowed

Orders

  • Appeal allowed with costs.
  • Orders of the Full Court of the Federal Court of Australia made on 25 February 2009 set aside.