Liq’s Bid to restrain examination evidence refused

examination evidence ruled in

Liquidator Schon Condon: sought an order restraining use of examination evidence

The ongoing examination into the affairs of Australia’s largest private precious metals smelter continues to provide ore for SiN’s mill.

As has been previously reported, the companies at the heart of this affair were served by the ATO with a $200 million plus bill for unpaid GST and penalties back in 2017 and are contesting it every inch of the way in the courts.

That contestation involves challenges to various corporate restructures that have taken place both before and since the ATO issued its bill and both before and since various insolvency practitioners have been dragged into the fray.

These include Schon Condon, as liquidator of ACN 154 520 199, KordaMentha’s Rahul Goyal and Jenny Nettleton as special purpose liquidators of ACN 154 520 199 and most recently Adam Shepard as liquidator of a thing called ABCRA1.

In Goyal, in the matter of ACN 154 520 199 Pty Ltd (in liq) [2018] FCA 129  you can get an idea of the fevered restructuring that has taken place even after Goyal and Nettleton were appointed as SPLs in April last year.

Shepard himself only came aboard as liquidator of ABC Refinery (Australia) Pty Ltd (ABCRA1) in November 2017 but last week’s judgment related to the SPL’s wish to use documents produced and evidence gathered in public examinations.

Condon wanted an order that would prohibit the ATO using of any information gathered in the public examinations in defending Condon’s ongoing appeal against the ATO’s assessment in the Administrative Appeals Tribunal (AAT).

In the AAT proceedings, Condon is being part-funded by interests associated with the ABC Refinery entities. Goyal and Nettleton meanwhile are being funded in their capacity as SPLs by the ATO.

Justice Jacqueline Gleeson however wasn’t convinced that Condon had made his case.

“I am not satisfied that the circumstances warrant the making of the proposed order,” she said.

“There is presently no suggestion that the SPLs may seek to exceed the limits of their powers by making improper use of the examination procedure. There is no suggestion that the examinations will be used as a “dress rehearsal” for the directors’ evidence in the tax appeal.

“The proposed order is directed against the ATO but there is no reason to suspect that any of its officers have any intention to use improperly any testimony obtained in the course of the public examinations. Accordingly, I will not make the order sought by Mr Condon.”

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About the Author

Peter Gosnell
Insolvency News Online illuminates the practice of insolvency Australia-wide, highlighting the triumphs and travails of the nation’s registered practitioners and the accounting and legal professionals who work with them. INO is produced by Peter Gosnell, former business editor and senior business reporter at The Daily Telegraph newspaper. During a decade-long career, your correspondent reported on such notable corporate collapses as HIH, One.Tel, Westpoint and Fincorp as well as some of the nation's highest profile bankruptcies and the investigations and prosecutions arising from Australia's most notorious instances of white-collar crime.

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