Stone (Liquidator), in the matter of RIC Admin Pty Ltd (in liq) v Mandalinic [2022] FCA 1346

Stone (Liquidator), in the matter of RIC Admin Pty Ltd (in liq) v Mandalinic [2022] FCA 1346

The Revocation Affidavit was not capable of reducing or revoking the PAYGW Estimate because s 268-40 of Schedule 1 to the TAA does not apply to an affidavit filed by a director in director penalty proceedings against the director, and in any event a director of a company in liquidation cannot unilaterally affect the company's liabilities by such an affidavit. Because the affidavit was not an affidavit for s 268-40 purposes, filing it did not amount to performing or exercising a function or power as director under s 198G(1). If that conclusion were wrong, nunc pro tunc approval would not be granted, both because retrospective approval for conduct constituting an offence is not available...

Jurisdiction
Australia
Judgment Date
11 November 2022
Procedural Posture
Corporations Interlocutory Application in Liquidator Proceedings Concerning Insolvent Trading and Unreasonable Director Related Transaction Claims / Interlocutory Application Filed by the Defendant Seeking Approval Nunc Pro Tunc Under S 198 G(3)(b) of the Corporations Act 2001 (cth) to File an Affidavit in Separate Supreme Court of New South Wales Proceedings
Outcome
The interlocutory application was dismissed with costs.
Legal Topics
['section 198 G of the Corporations Act 2001 (cth)' 'director Powers While Company Under External Administration' 'paygw Estimates Under Division 268 of Schedule 1 to the Taxation Administration Act 1953 (cth)' 'director Penalties Under Division 269 of Schedule 1 to the Taxation Administration Act 1953 (cth)' 'revocation or Reduction of Tax Estimates by Affidavit' 'nunc Pro Tunc Approval']
['corporations' 'corporate Insolvency' 'taxation' 'statutory Construction'] ['section 198 G of the Corporations Act 2001 (cth)' 'director Powers While Company Under External Administration' 'paygw Estimates Under Division 268 of Schedule 1 to the Taxation Administration Act 1953 (cth)' 'director Penalties Under Division 269 of Schedule 1 to the Taxation Administration Act 1953 (cth)' 'revocation or Reduction of Tax Estimates by Affidavit' 'nunc Pro Tunc Approval']

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Procedural Posture

Corporations Interlocutory Application in Liquidator Proceedings Concerning Insolvent Trading and Unreasonable Director Related Transaction Claims / Interlocutory Application Filed by the Defendant Seeking Approval Nunc Pro Tunc Under S 198 G(3)(b) of the Corporations Act 2001 (cth) to File an Affidavit in Separate Supreme Court of New South Wales Proceedings

Legal Issues

  1. 1 ['Whether an affidavit filed by a director in proceedings brought by the Commissioner against a director of a company for recovery of an estimate can constitute an affidavit for the purposes of s 268-40 of Schedule 1 to the Taxation Administration Act 1953 (Cth).' 'Whether an affidavit filed by a director in proceedings brought by the Commissioner against a director of a company in liquidation for recovery of an estimate can constitute an affidavit for the purposes of s 268-40 of Schedule 1 to the Taxation Administration Act 1953 (Cth).' 'Whether Mr Mandalinic contravened s 198G of the Corporations Act 2001 (Cth) by filing the Revocation Affidavit.' 'If there was a contravention of s 198G, whether the Court should grant approval to Mr Mandalinic nunc pro tunc under s 198G(3)(b) to file the Revocation Affidavit.']

Ratio Decidendi

The Revocation Affidavit was not capable of reducing or revoking the PAYGW Estimate because s 268-40 of Schedule 1 to the TAA does not apply to an affidavit filed by a director in director penalty proceedings against the director, and in any event a director of a company in liquidation cannot unilaterally affect the company's liabilities by such an affidavit. Because the affidavit was not an affidavit for s 268-40 purposes, filing it did not amount to performing or exercising a function or power as director under s 198G(1). If that conclusion were wrong, nunc pro tunc approval would not be granted, both because retrospective approval for conduct constituting an offence is not available...

Court Disposition

The interlocutory application was dismissed with costs.

Orders

  • ['The interlocutory application filed by the defendant on 26 August 2022 is dismissed.' 'The defendant is to pay the costs of the plaintiffs of and incidental to the hearing of the interlocutory application.']