Spencer v Neo Rock Pty Ltd ACN 110 874 283 (In Liquidation) [2009] FCA 845

Spencer v Neo Rock Pty Ltd ACN 110 874 283 (In Liquidation) [2009] FCA 845

Leave under s 471A and leave to appeal were refused because Mr Spencer raised no arguable error in the primary judge's construction or application of s 459S of the Corporations Act 2001 (Cth), and the company had not filed evidence demonstrating that it was solvent or that it would be solvent if the contested tax debt did not exist. The asserted abuse of process was rejected because the winding-up application proceeded in the proper way following the statutory demand and the Registrar's directions.

Jurisdiction
Australia
Judgment Date
03 August 2009
Procedural Posture
Application Under S 471 a of the Corporations Act 2001 (cth) for Leave to Act as a Director for the Purpose of Seeking Leave to Appeal, and Application for Leave to Appeal From Winding Up Orders / Ex Tempore Reasons on Application
Outcome
The application was dismissed. Leave to act as a director and leave to appeal were refused, with costs ordered in favour of the second respondent.
Legal Topics
['leave to Act as Director Under S 471 a of the Corporations Act 2001 (cth)' 'leave to Appeal From Winding Up Orders' 'statutory Demand' 'winding Up in Insolvency' 'application of S 459 S of the Corporations Act 2001 (cth)' 'proof of Solvency']
['practice and Procedure' 'corporations' 'insolvency' 'taxation and Revenue'] ['leave to Act as Director Under S 471 a of the Corporations Act 2001 (cth)' 'leave to Appeal From Winding Up Orders' 'statutory Demand' 'winding Up in Insolvency' 'application of S 459 S of the Corporations Act 2001 (cth)' 'proof of Solvency']

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Procedural Posture

Application Under S 471 a of the Corporations Act 2001 (cth) for Leave to Act as a Director for the Purpose of Seeking Leave to Appeal, and Application for Leave to Appeal From Winding Up Orders / Ex Tempore Reasons on Application

Legal Issues

  1. 1 ['Whether Mr Spencer should be granted leave under s 471A of the Corporations Act 2001 (Cth) to act as a director for the purpose of making an application for leave to appeal from the winding-up orders' "Whether leave to appeal from Logan J's orders winding up Neo Rock Pty Ltd should be granted" "Whether any arguable error was shown in the primary judge's application of s 459S of the Corporations Act 2001 (Cth)" "Whether the company's proposed challenge to the Deputy Commissioner of Taxation's debt was material to proving solvency"]

Ratio Decidendi

Leave under s 471A and leave to appeal were refused because Mr Spencer raised no arguable error in the primary judge's construction or application of s 459S of the Corporations Act 2001 (Cth), and the company had not filed evidence demonstrating that it was solvent or that it would be solvent if the contested tax debt did not exist. The asserted abuse of process was rejected because the winding-up application proceeded in the proper way following the statutory demand and the Registrar's directions.

Court Disposition

The application was dismissed. Leave to act as a director and leave to appeal were refused, with costs ordered in favour of the second respondent.

Orders

  • ['The application is dismissed.' 'The applicant shall pay the costs of the second respondent of and incidental to the application.']