Keith Smith East West Transport Pty Ltd v Australian Taxation Office
[2002] NSWCA 264(Decision by: Giles JA)
Between: Keith Smith East West Transport Pty Ltd (in liq) and Anor
And: Australian Taxation Office
Judges:
Mason P
Handley JA
Giles JA
Subject References:
CORPORATIONS
insolvency
taxation assessed and paid by company
whether company was insolvent at the time of payment or if it became insolvent as a result of the payment
unfair preference
Corporations Act, s95A and Part 5.7B
statutory presumption of insolvency
financial records of company
credibility of witnesses
proof of insolvency
a conclusion as to solvency or otherwise can only be made having regard to the total position at the relevant time
whether appropriate to consider a creditor's willingness to defer enforcement action subject to satisfactory arrangements for the reduction of debt
Legislative References:
Corporations Act 2001 - s95A; Part 5.7B
Case References:
Abalos v Australian Postal Commission - (1990) 171 CLR 167
Brooks v Heritage Hotel Adelaide Pty Ltd - (1996) 20 ACSR 61
Sandell v Porter - (1966) 115 CLR 666
Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation - (2001) 53 NSWLR 213
Sutherland (as liquidator of Sydney Appliances Pty Ltd (in liq)) v Eurolinx Pty Ltd - (2001) 37 ACSR 477
Judgment date: 14 August 2002
Decision by:
Giles JA
42 I agree with Mason P.
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COUNSEL:
- Appellant: L J W Aitken
- Respondent: M R Aldridge SC/ P D Rodionoff
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SOLICITORS:
- Appellant: Jones King Lawyers
- Respondent: Australian Government Solicitor