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  • Unreported Judgment

Deputy Commissioner of Taxation v Queensland Mushrooms Pty Ltd

 

[2002] QSC 216

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

4 July 2002

DELIVERED AT:

Brisbane

HEARING DATE:

1 July 2002

JUDGE:

White J

ORDER:

As per attached

CATCHWORDS:

Application to vary draft order for a stay

COUNSEL:

Mr P.E. Hack SC for the plaintiff

Mr. H.L. Alexander for the defendant

SOLICITORS:

Australian Government Solicitor for the plaintiff

Kenny & Co. for the defendant

[1] The parties have provided further submissions in writing about:

  • the amount of the judgment debt;
  • the form of order in the stay application.

[2] There is no longer any issue about the amount of the judgment debt and the order will reflect judgment for the Deputy Commissioner of Taxation in the sum of $13,250,303.23.

[3] A draft order was signed by me on 2 July 2002 after granting a stay in respect of the execution of the judgment entered on behalf of the Deputy Commissioner subject to further submissions.

[4] The following changes are not opposed and will be included in the Order:

  • addition of the words “except to incur unsecured loans or debts to comply with 2(a) [the payment of the $250,000 per month] or accept with the prior written consent of the plaintiff” in Order 2(b);
  • “Either party has liberty to apply to vary or discharge this order or for dispensation from the aforesaid conditions and undertakings on the giving of seven days notice in writing to the other” which is new Order 3. 

[5] The Deputy Commission seeks to have added the words “or deal with” after “not to dispose of” in respect of the taxpayer’s assets in Order 2(b).  That addition is opposed.  The prohibition on incurring debts except in the ordinary course of business and the other exceptions is sufficient to protect the Deputy Commissioner’s interest.  The expression “or deal with” is very broad and may encompass other than what is truly sought to be prohibited.  That expression will not be added to Order 2(b).

[6] The Deputy Commissioner proposes to add a number of companies to the three restrained in Order 2(c) from dealing with their assets with agreed exceptions.  They are:

Anjara Pty Ltd

QM Management Pty Ltd

QM Holdings Pty Ltd

Willemse Family Company Pty Ltd

Willemse Group Pty Ltd

Contager Pty Ltd

Moruma Pty Ltd

[7] The tax audit commenced at the end of 1998.  In July 1999 Notices of Assessment for the 1993-1998 financial years were issued to the taxpayer.  The taxpayer owned the land and improvements on which the business was conducted.  Until November 1999 it also carried on the business of growing mushrooms.  The business was restructured and the taxpayer leased or licensed its assets to associated entities so that they might carry on aspects of the mushroom growing business.

[8] The three companies mentioned in Order 2(c) had been named Cadrill Pty Ltd, Annesley Investments Pty Ltd and R D Moore Pty Ltd, the trustees of the lost trusts.

[9] The taxpayer opposes the addition of these further companies.  The purpose in restraining the three companies named in the order on 2 July 2002 as the taxpayer concedes, was to maintain the status quo as much as possible before the restructuring of the business after the assessments in 1999.

[10] Anjara Pty Ltd and QM Management Pty Ltd supply labour to the business.  QM Holdings Pty Ltd apparently provide plant and equipment to the business.  These companies are shown in the QM Group Accounts and Balance Sheet as at 28 February 2002 as part of the restructured business.  They should be included.

[11] The remaining companies have not been shown on material to be involved in the restructure or the mushroom growing business.  The mere mention of them in the sketch, exhibit 29, to Maria Clark’s affidavit and in the bank loan documents, is insufficient to extend the restraining order to them.

[12] The order will be in accordance with the draft initialled by me and placed with these reasons.

Close

Editorial Notes

  • Published Case Name:

    Deputy Commissioner of Taxation v Queensland Mushrooms Pty Ltd

  • Shortened Case Name:

    Deputy Commissioner of Taxation v Queensland Mushrooms Pty Ltd

  • MNC:

    [2002] QSC 216

  • Court:

    QSC

  • Judge(s):

    White J

  • Date:

    04 Jul 2002

Litigation History

No Litigation History

Appeal Status

No Status