CITATION: Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1430 HEARING DATE(S): 09/12/10
JUDGMENT DATE :
9 December 2010JURISDICTION: Equity Division
Corporations ListJUDGMENT OF: Barrett J EX TEMPORE JUDGMENT DATE: 9 December 2010 DECISION: Application dismissed CATCHWORDS: CORPORATIONS - winding up - statutory demand - application for extension of time for compliance - power to extend exists only if valid s 459G application made - no such application made LEGISLATION CITED: Corporations Act 2001 (Cth), ss 459F(2)(a)(i), 459G CATEGORY: Principal judgment CASES CITED: Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409 PARTIES: Mossimo Systems International Pty Ltd
Horizon Developments Sydney Pty Ltd
Precise Constructions Pty Ltd
Integrated Constructions Pty Ltd
Caporale Buiilders Corporation Sydney Pty Ltd
Elite Project Management Pty Ltd
Caporale Group Pty Ltd
Matrix Holdings Pty Ltd
Caporale Builders Pty Ltd - Plaintiffs
Deputy Commissioner of Taxation - DefendantFILE NUMBER(S): SC 2010/109215 COUNSEL: Ms R Caporale in person - Plaintiffs SOLICITORS: Ms R Caporale in person - Plaintiffs
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST
BARRETT J
9 DECEMBER 2010
2010/109215 MOSSIMO SYSTEMS INTERNATIONAL PTY LTD & ORS v DEPUTY COMMISSIONER OF TAXATION
1 Ms Caporale has come before the court this afternoon on behalf of the seven plaintiffs referred to in my judgment of 2 December. She has done so, she says, with the knowledge of the defendant Deputy Commissioner of Taxation. She spoke to an officer of the Australian Taxation Office earlier today.
2 Ms Caporale seeks on behalf of each of the seven plaintiffs an order under s 459F(2)(a)(i) of the Corporations Act 2001 (Cth) extending the time for compliance with the statutory demand. The period of extension sought is 90 days.
3 An order can be made under s 459F(2)(a)(i) only if there has been a valid application under s 459G for an order setting aside the relevant statutory demand.
4 For reasons given at paragraphs [9] to [11] of the judgment of 2 December 2010 (Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409), that pre-condition is not satisfied in this case. It is accordingly not open to the court to make any order under s 459F(2)(a)(i).
5 The notice of motion is dismissed.
6 I should add for Ms Caporale's benefit that this in no way precludes her attempting to negotiate further with the Australian Taxation Office with a view to persuading it not to initiate winding up proceedings.
- AGLC
- Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1430
- Case
- [2010] NSWSC 1430
- Decision Date
CaseChat Overview and Summary
The court held that the power to extend the time for compliance with a statutory demand is contingent upon a valid application being made under section 459G. In this case, no such application was made, and therefore, the court lacked the authority to grant an extension of time. The court found that the company's application for an extension was invalid as it did not follow the necessary procedural steps outlined in the Corporations Act. Consequently, the court dismissed the company's application for an extension of time. The decision underscores the importance of adhering to statutory requirements when seeking relief from compliance with a statutory demand. The court's ruling reinforced that without a valid application under section 459G, the court cannot exercise its discretion to extend the time for compliance.
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