Morgillo v Deputy Commissioner of Taxation
[1999] QCA 529
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- Unreported Judgment
- Morgillo v Deputy Commissioner of Taxation[1999] QCA 529
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Morgillo v Deputy Commissioner of Taxation[1999] QCA 529
Morgillo v Deputy Commissioner of Taxation[1999] QCA 529
COURT OF APPEAL |
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McMURDO P |
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Appeal No 11290 of 1999 |
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SHERCORP PTY LTD ACN 072 982 953 in liquidation) |
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VINCENT MORGILLO | Applicant |
and |
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DEPUTY COMMISSIONER OF TAXATION | Respondent |
BRISBANE |
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DATE 17/12/99 |
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ORDER |
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THE PRESIDENT: This is an application for a stay of an order made by Mr Justice Williams on 10 December 1999 winding up the company Shercorp Pty Ltd. The application is brought by Vincent Morgillo, a director of Shercorp Pty Ltd. The first issue is whether this Court has jurisdiction to hear an application for a stay. Mr Coulsen, who appears for the Deputy Commissioner of Taxation, argues that s. 482 of the Corporations Law does not permit a director to apply for a stay. When that section is read with division 1A of the Corporations Law, and in particular 471B, it seems unlikely the Legislature would have intended, even in a clear case where an error had been made, that a director would never be able to apply to a Court for a stay of a winding-up order. In my view s. 471B of the Corporations Law allows a Court to stay a winding-up order on the application of a director with leave of the Court. Such a conclusion is also consistent with the spirit of other decisions of his Court, for example, Rockbottom Fashion Market and Griffiths Pty Limited (1997) QCA 3 at 99 4 November 1997.
The considerations for the Court in deciding whether or not to grant a stay are firstly the strength of the case ultimately appealed against, and secondly, the balance of convenience. It must be said in this case that in my view the applicant has very poor prospects of successfully appealing he order made by Mr Justice Williams on 10 December 1999. The argument put forward by the applicant and rejected by the primary Judge seems extraordinary.
However, there is a special and unusual circumstance in this case; the matter is listed before Justice Callinan in the High Court on Tuesday next week and will be able to be authoritatively determined at that time.
In addition, affidavit material has been placed before the Court which demonstrates prejudice and hardship on behalf of the company. The stay will only have effect over two working days. Were the stay not granted and the applicant ultimately successful the consequences would be onerous.
For those reasons it seems to me the balance of convenience heavily weighs in favour of granting he stay, despite the obvious strength of the respondent's case.
therefore give leave to the applicant to bring this application and order that the judgment of Mr Justice Williams of 10 December 1999 to wind up Shercorp Pty Ltd ACN 072 982 953 be stayed until Tuesday, 21 December 1999, at 5 p.m., conditional upon the affirmation of all actions of the liquidator since the liquidator's appointment on 10 December 1999. Undertakings being given from the company and the directors not to undo any acts of the liquidator, not to dissipate any assets of the company and to preserve the status quo.
Any submissions as to the order? Does that order meet the requirements of you both?
MS PHILLIPEDES: Yes, Your Honour.
THE PRESIDENT: All right. Now, the question of costs. Ms Julian-Armitage, did you want to be-----
MS JULIAN-ARMITAGE: I have no instructions as to costs, Your Honour.
MS PHILLIPEDES: Your Honour, we would be happy to have the costs reserved for determination on the hearing of the appeal. But is Your Honour intending to seek the undertakings this morning with respect - seek indications as to whether the undertakings are forthcoming this morning?
THE PRESIDENT: I am sorry, the -----
MS PHILLIPEDES: The undertakings with respect to ----- THE PRESIDENT: In the order?
MS PHILLIPEDES: Yes.
THE PRESIDENT: Yes. Well, I understood they were given, but perhaps we should clarify hat.
MS PHILLIPEDES: Yes.
THE PRESIDENT: The undertakings in the order re given?
MS JULIAN-ARMITAGE: Excuse me, Your Honour.
THE PRESIDENT: The undertakings from the company and the director not to undo anything done by the liquidator or dissipate any assets of the company and to preserve the status quo, those undertakings are given?
MS JULIAN-ARMITAGE: I am instructed they are given, Your Honour.
THE PRESIDENT: Yes.
MS JULIAN-ARMITAGE: Thank you, Your Honour.
THE PRESIDENT: You have got nothing to say about reserving the costs?
MR COULSEN: No, we would say that is appropriate, Your Honour.
THE PRESIDENT: All right. The costs will be reserved.