Keith Smith East West Transport Pty Ltd v Australian Taxation Office
[2002] NSWCA 264Between: 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
ORDER
Appeal dismissed with costs.
Copyright notice
© Australian Taxation Office for the Commonwealth of Australia
You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).