Joosse v Deputy Commissioner of Taxation

(2004) 137 FCR 576; [2004] FCAFC 245

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Interrogate

Catchwords

1. Bankruptcy
2. › Sequestration order
3. › Going behind judgment debt
4. › Discretion to investigate
5. › Whether substantial reasons for questioning debt
6. › Standard of evidence required
7. › Bankruptcy Act 1966 (Cth), s 60
1. Corporations
2. › Winding up
3. › Voluntary winding up
4. › Commencement
5. › Whether failure to appoint liquidator or lodge statutory notices affects commencement
6. › Corporations Law, ss 491, 493, 495, 513B
1. Taxation
2. › Income tax
3. › Director's personal liability for unremitted group tax
4. › Whether company began to be wound up within 14-day period
5. › Income Tax Assessment Act 1936 (Cth), ss 222APB, 222APC, 222APE
1. Appeal
2. › Appellate review of discretionary decision
3. › Error of law in exercise of discretion
4. › Whether appellate court should interfere

Quick Take

A voluntary winding up under the Corporations Law commences on the day the special resolution is passed, regardless of whether a liquidator is appointed or statutory notices are lodged with ASIC or published in the Gazette. When a bankruptcy court considers whether to go behind a judgment debt, the debtor need only show 'substantial reason for questioning whether there is a debt' — requiring the debtor to prove the judgment was wrong imposes too harsh a burden. However, where the debtor's evidence is inconsistent with positions taken in prior proceedings and the documentary evidence bears apparent alterations, the court may require more rigorous proof.