Commissioner of Taxation v Moodie

[2014] NSWCA 59

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Corporations
2. › Winding up
3. › Insolvent transactions
4. › Recovery of preferences
5. › Claim by liquidator against Commissioner of Taxation pursuant to s 588FF
6. › Commissioner joins director to seek indemnity pursuant to s 588FGA
7. › Costs
8. › Whether Commissioner liable for liquidator's costs after withdrawing defence
9. › Whether director's contest of insolvency shifts costs liability from Commissioner to director
10. › Corporations Act 2001 (Cth), ss 588FA, 588FE, 588FF, 588FGA, 588FGB
1. Practice and Procedure
2. › Costs
3. › Discretion as to costs
4. › Costs follow the event
5. › Offer of compromise
6. › Indemnity costs
7. › Whether exceptional circumstances justified departure from UCPR r 42.14(2)
8. › Whether Noxequin established a rule of general application
9. › Civil Procedure Act 2005 (NSW), s 98
10. › Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.14
1. Practice and Procedure
2. › Costs
3. › Third party proceedings
4. › Commissioner's choice to join director in liquidator's proceedings
5. › Responsibility for costs where Commissioner maintains indemnity claim against impecunious director
6. › Whether Commissioner effectively an interpleader
1. Appeal
2. › Leave to appeal
3. › Costs orders
4. › Standard of appellate review
5. › Whether clear error of principle or manifest injustice
6. › House v The King principles
7. › Supreme Court Act 1970 (NSW), s 101(2)(c)

Quick Take

Where the Commissioner of Taxation chooses to pursue a s 588FGA(4) indemnity in the liquidator's s 588FF proceedings rather than in separate proceedings, the Commissioner bears responsibility for the liquidator's costs for the entire duration of the proceedings, including after the Commissioner withdraws his defence, where the Commissioner's maintenance of the indemnity claim keeps the proceedings on foot. The decision in Noxequin does not establish a general rule that the director should bear the liquidator's costs after the Commissioner's concession. The Commissioner's remedy for such costs lies in the s 588FGA(2) statutory indemnity against the director.