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The ATO has published a Decision Impact Statement in relation to the decision of the New South Wales Court of Appeal in FCT v Moodie [2014] NSWCA 59.

The case concerned costs in unfair preference payment proceedings where the Commissioner joined a director to the proceedings to seek indemnity under s 588FGA of the Corporations Act 2001. The case confirms the Court's discretion to order the Commissioner to pay the Liquidator's costs even if the Commissioner does not defend the claim.

The ATO view of the decision is stated as follows:

"The decision may affect other unfair preference matters where an indemnity is sought from the directors of the company. There is a potential for adverse costs implications for the Commissioner in such matters, particularly where the liquidators utilise an offer of compromise or 'Calderbank offer'."

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