Commissioner of Taxation v Sims

(2008) 72 NSWLR 716; [2008] NSWCA 298

NSW Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Winding up
3. › Voidable transactions
4. › Recovery by liquidator under s 588FF
5. › Indemnity of Commissioner of Taxation by directors under s 588FGA(2)
6. › Whether 'any loss or damage resulting from the order' includes costs ordered to be paid to liquidator
7. › Corporations Act 2001 (Cth), ss 588FF, 588FGA(2)
1. Statutory Interpretation
2. › Ambiguity
3. › Extrinsic materials
4. › Explanatory Memorandum
5. › Meaning of 'loss or damage resulting from' an order
6. › Corporations Act 2001 (Cth), s 588FGA(2)
7. › Acts Interpretation Act 1901 (Cth), s 15AB
1. Costs
2. › Indemnity for costs
3. › Statutory indemnity
4. › Whether costs ordered against Commissioner of Taxation in voidable transaction proceedings constitute 'loss or damage' within s 588FGA(2)
5. › Qualification of reasonableness

Quick Take

The statutory indemnity under s 588FGA(2) of the Corporations Act 2001 (Cth) extends to costs that the Commissioner of Taxation is ordered to pay to a successful liquidator in voidable transaction proceedings under s 588FF, but only to the extent those costs were reasonably incurred by the Commissioner. The definition of 'result' in s 9 of the Act, which includes 'result indirectly', supports this construction. Directors joined under s 588FGA face exposure not only to the substantive judgment amount but also to the Commissioner's costs liability to the liquidator.