Deputy Commissioner of Taxation v PAD & Sons Pty Ltd [2025] FCA 1131

Federal Court of Australia|2025-09-12|Before: Owens J

The application also sought orders granting the company leave to file and serve (a) an objection to interest and penalties currently owing to the ATO and (b) a statement of claim in the Supreme Court of New South Wales against Domino's Pizza Enterprises Ltd. I understood the substance of this aspect of the application to be that Mr Dehsabzi wished to cause the company to take the two steps indicated. There are a range of procedural and substantive difficulties with this aspect of the application, but I am able to deal with it on its merits, and I think it is best that I do so.
The company is now in external administration, and thus under the control of the liquidator. It will be for the liquidator to determine what action, if any, the company should take in relation to debts said to be owed by or to it. No basis has been demonstrated for interfering in the conduct of the winding up by the liquidator. Indeed, the liquidator has expressly indicated that he will take at least the initial step of corresponding with Domino's about the potential claim that Mr Dehsabzi has raised. It follows that I decline to grant the relief sought (or any other relief directed to achieving the result sought by Mr Dehsabzi and/or the company).

For these reasons, I am satisfied that I should confirm the order made by the Registrar on 23 May 2025 that the company be wound up pursuant to of the .

The application having been unsuccessful, there is no reason why costs should not follow the event and I will make an order that the defendant pay the plaintiff's costs of the application for review, save that in relation to an interlocutory application that was brought by the plaintiff but withdrawn before it was heard or determined, the order will be that the plaintiff and the defendant each bear their own costs.
The liquidator sought an order for costs in his favour and that it be payable by Mr Dehsabzi personally. I do not consider that there should be any order for costs in favour of the liquidator. He was not named as a party to the application, and no ground of review called for a response from him. The liquidator properly adopted the course of asking to be excused when the matter was called on, indicating that he did not propose to take a position in relation to the application. I do not agree that his participation in the proceedings was required by reason of the either substantive or, following my order, formal bringing of the application in the company's name. In those circumstances, I do not think that the liquidator is entitled to an order for costs, and it follows that I do not need to consider whether, if I had made such an order, I would have been prepared to order that the costs be borne by Mr Dehsabzi personally.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens.

Interpretation Act 1901

Court of Australia Act 1976

Tax Assessment Act 1997

Administration Act 1953

Court (Corporations) Rules 2000

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Callegher v Australian Securities and Investments Commission (2007) 218 FCR 81; [2007] FCA 482

CBA Corporate Services (NSW) Pty Ltd v Walker (2013) 212 FCR 444; [2013] FCAFC 74

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14

Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325; [2007] FCAFC 16

Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Ltd (1995) 183 CLR 168; [1995] HCA 23

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Deputy Commissioner of Taxation v JGQ Developments Pty Ltd [2018] FCA 2046

Deputy Commissioner of Taxation v Revolve Ltd [2012] FCA 555

Hoy v RHM Industries Pty Ltd [2023] FCA 115

In the matter of Vangory Holdings Pty Ltd [2015] NSWSC 546

Minister for Immigration and Ethic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20

Pearce v Gulmohar Pty Ltd [2017] FCA 660

TS Recoveries Pty Ltd v Sea-Slip Marinas (Aust) Pty Ltd [2007] NSWSC 1410

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7

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