The Court held that a notice issued under s 260-5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) creates a statutory charge that constitutes a 'security interest' for the purposes of s 440B of the Corporations Act, making the Commissioner a 'secured party' in relation to property of the company. However, the Court also held that the passive receipt of payments by the Commissioner under such a notice, and the refusal to withdraw the notice, do not constitute 'enforcement' of the security interest, meaning s 440B is not engaged where the Commissioner takes no active enforcement steps. In the alternative, the Court held that s 447A confers power to suspend the practical operation of a s 260-5 notice during voluntary administration where doing so promotes the objects of Part 5.3A, notwithstanding that the notice derives its force from a separate Commonwealth taxation statute — the alteration to the Commissioner's statutory rights being incidental to the purpose of promoting the administration's objectives.
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