Neutral Bay P/L and Ors. v Deputy Commissioner of Taxation

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Neutral Bay Pty Ltd
vDeputy Commissioner of Taxation
Ma Howard Racing Pty Ltd
vDeputy Commissioner of Taxation
Broadbeach Properties Pty Ltd
vDeputy Commissioner of Taxation

Court:

Judges: Keane JA
Holmes JA
Muir JA

Subject References:
Corporations
Winding Up
Winding Up In Insolvency
Statutory Demand
Application To Set Aside Demand
Genuine Dispute As To Indebtedness
Assessing Genuineness
Tests To Be Applied
where appellant served respondents with statutory demand
where respondents pursuing Part IVC proceedings
whether statutory demand could be set aside under s 459H
whether discretion under s 459J correctly exercised

Legislative References:
A New Tax System (Goods and Services Tax) Act 1999 (Cth) - s 17-5; s 33-5; s 165-40; s 165-50
Corporations Act 2001 (Cth) - s 459H; s 459J; s 459P
Income Tax Assessment Act 1936 (Cth) - s 177; s 204
Taxation Administration Act 1953 (Cth) - s 24

Case References:
Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation (2005) - 157 ACTR 22
Batagol v Federal Commissioner of Taxation - [1963] HCA 51; (1963) 109 CLR 243
Deputy Commissioner of Taxation v Richard Walter Pty Ltd - [1995] HCA 23; (1995) 183 CLR 168
Deputy Federal Commissioner of Taxation v Brown - [1958] HCA 2; (1958) 100 CLR 32
Hoare Bros Pty Ltd v Commissioner of Taxation - (1996) 62 FCR 302
Kalis Nominees Pty Ltd v DCT - (1995) 31 ATR 188
KW & KM Quinn Investments P/L v DCT - [2004] QCA 91
McAndrew v Federal Commissioner of Taxation - [1956] HCA 62; (1956) 98 CLR 263
Platypus Leasing Inc v Federal Commissioner of Taxation - (2005) 61 ATR 239
Willemse Family Company Pty Ltd v Deputy Commissioner of Taxation - [2003] 2 Qd R 334

Hearing date: 5 and 6 September 2007
Judgment date: 28 September 2007

Brisbane

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Conclusion and orders

[86] For these reasons, I have concluded that the appellant's challenges to the decision of the learned primary judge should be rejected, and that decision should be upheld.

[87] The appeals should be dismissed. The appellant should be ordered to pay the respondents' costs to be assessed on the standard basis.