Keith Smith East West Transport Pty Ltd v Australian Taxation Office

[2002] NSWCA 264

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(Judgment by: Giles JA)

Between: Keith Smith East West Transport Pty Ltd (in liq) and Anor
And: Australian Taxation Office

Court:

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

Hearing date: 11 July 2002
Judgment date: 14 August 2002

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Judgment by:
Giles JA

42 I agree with Mason P.

COUNSEL:

Appellant: L J W Aitken

Respondent: M R Aldridge SC/ P D Rodionoff

SOLICITORS:

Appellant: Jones King Lawyers

Respondent: Australian Government Solicitor