Deputy Commissioner of Taxation v Chemical Trustee Limited

Basis for Deputy Commissioner's Summary Judgment Claim 7 I turn first to the motion brought by the Deputy Commissioner. I commence by noting that, in what follows, I make no findings of fact as to any substantive matter: see Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 at 44 at [6] (Finkelstein J) and Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at 282. Rather, what follows is a summary of the evidence adduced by the Deputy Commissioner, principally given by way of an affidavit of Aris Zafiriou sworn on 11 October 2010, which, with its exhibits, was relied on by the Deputy Commissioner in support of the summary judgment motion. Mr Zafiriou is an Executive Level Officer in the Commonwealth Public Service employed in the Debt Section of the Australian Taxation Office at Melbourne.

Chemical Trustee Limited's tax liability 8 According to Mr Zafiriou, Chemical wrongly failed to provide the Commissioner of Taxation with income tax returns for the years ended 30 June 2001, 30 June 2002, June 2003, June 2004, 30 June 2006, and 30 June 2007, with the result that, on 12 August 2010, the Deputy Commissioner issued notices of assessment to Chemical under s 167 of the ITAA 1936 in respect of the years 2001, 2003, 2004, 2006 and 2007 and notice of amended assessment in respect of the year ending 30 June 2002. Also on 12 August 2010, the Deputy Commissioner sought orders, amongst other things, restraining Chemical from removing assets from Australia or diminishing the value of such assets. The court granted the orders sought by the Deputy Commissioner that day. Although varied from time to time, the orders have in substance continued until now. The making of orders and some of the background to the proceeding is discussed in Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 (appeal pending). 9 The notices of assessment issued to Chemical related to income tax liabilities for the years ended 30 June 2001, 30 June 2002, June 2003, June 2004, 30 June 2006, and 30 June 2007. In respect of each income year, there was also a general interest charge pursuant to s 204 of the ITAA 1936 and Part IIA of the TAA, which, so Aris Zafiriou deposed, "has been properly calculated in accordance with the provisions of the said Acts". Aris Zafiriou has further deposed that these income tax liabilities and general interest charges total $3,100,626.17, the notices of assessment being duly served on Chemical on or about 12 August 2010 "in accordance with the provisions of the ITAA 1936 and the Income Tax Regulations 1936". 10 Documents under the hand of a Deputy Commissioner of Taxation, being copies of the notices of assessment pursuant to s 177 of the ITAA 1936, were exhibited to Mr Zafiriou's 11 October 2010 affidavit. Also exhibited to Aris Zafiriou's affidavit is a certificate pursuant to s 255-45 of Schedule 1 to the TAA 1953, again under the hand of a Deputy Commissioner of Taxation, which states that: 1. Notices of the following assessments were, or are taken to have been, served on CHEMICAL TRUSTEE LIMITED under a taxation law: (a) notice of assessment as to income tax for the year ended 30 June 2001, which issued on 12 August 2010; (b) notice of assessment as to income tax for the year ended 30 June 2002, which issued on 12 August 2010; (c) notice of assessment as to income tax for the year ended 30 June 2003, which issued on 12 August 2010; (d) notice of assessment as to income tax for the year ended 30 June 2004, which issued on 12 August 2010; (e) notice of assessment as to income tax for the year ended 30 June 2006, which issued on 12 August 2010; (f) notice of assessment as to income tax for the year ended 30 June 2007, which issued on 12 August 2010; 2. The sum of $3,100,626.17 is at 7 October 2010, a debt due and payable by CHEMICAL TRUSTEE LIMITED to the Commonwealth of Australia. 11 A copy of a notice of administrative penalty for failure to lodge income tax returns for these years, certified by a Deputy Commissioner of Taxation, pursuant to s 298-30 of Schedule 1 to the TAA 1953, was also exhibited to Mr Zafiriou's 11 October 2010 affidavit. Mr Zafiriou deposed that: The Notice of Administrative Penalty was duly served on [Chemical] on or about the date of issue of the notice, being 12 August 2010, in accordance with the provisions of the TAA 1953 and the Taxation Administration Regulations 1976. 12 According to Mr Zafiriou's 11 October 2010 affidavit, Chemical has not paid the administrative penalty on or before the due date specified in the notice of administrative penalty; and, as at 7 October 2010, Chemical was indebted to the Commonwealth in respect of the administrative penalty in the sum of $1,683,149.51. This amount comprised the administrative penalties payable pursuant to s 284-75 of Schedule 1 to the TAA 1953, in respect of the failures to lodge income tax returns in the relevant years, and general interest charges for late payment of administrative penalty calculated up to and including 6 October 2010. According to Mr Zafiriou, the amount of $1,683,149.51 "has been properly calculated in accordance with the provisions of the [TAA 1953]". 13 A certificate pursuant to s 255-45 of Schedule 1 to the TAA 1953 under the hand of a Deputy Commissioner of Taxation was exhibited to Mr Zafiriou's affidavit, which stated that: 1. Notices of the following assessments were, or are taken to have been, served on CHEMICAL TRUSTEE LIMITED under a taxation law: (a) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2001, which issued on 12 August 2010; (b) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2002, which issued on 12 August 2010; (c) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2003, which issued on 12 August 2010; (d) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2004, which issued on 12 August 2010; (e) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2006, which issued on 12 August 2010; (f) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2007, which issued on 12 August 2010; 2. The sum of $1,683,149.51 is at 7 October 2010, a debt due and payable by CHEMICAL TRUSTEE LIMITED to the Commonwealth of Australia. 14 At the hearing of the summary judgment motion on 9 November 2010, the Deputy Commissioner tendered a further certificate under s 255-45 of Schedule 1 of the TAA 1953 stating that: (a) The sum of $3,132,699.30 is at 8 November 2010 a debt due and payable by [Chemical] to the Commonwealth of Australia in respect of income tax and associated general interest charge. (b) The sum of $1,700,560.15 is at 8 November 2010 a debt due and payable by [Chemical] to the Commonwealth of Australia in respect of administrative penalties and associated general interest charge. 15 Having regard to these matters, the Deputy Commissioner claims to have established that Chemical is indebted to the Commonwealth of Australia in the amount of $1,700,560.15 as at 8 November 2010. The sum of $1,700,560.15 and $3,132,699.30 (referred to above) is $4,833,259.45, which is therefore claimed as a debt owed by Chemical to the Commonwealth and payable to the Commissioner. 16 Mr Zafiriou's October 2010 affidavit also affirmed his belief that Chemical had no defence to the Deputy Commissioner's claim. 17 In submissions filed on the question whether summary judgment should be entered, Chemical referred to the affidavit of Vanda Gould of 1 September 2010 in support of the proposition that the correctness of the amounts assessed might be doubted. The Court was informed that Chemical had lodged objections to the assessments and the Deputy Commissioner had not yet made decisions on the objections.

Derrin Brothers Property Limited's tax liability 18 According to Mr Zafiriou, Derrin wrongly failed to provide the Commissioner of Taxation with income tax returns for the years ended 30 June 2003, 30 June 2004 and 30 June 2005, with the result that, on 12 August 2010, the Deputy Commissioner issued notices of assessment to Derrin under s 167 of the ITAA 1936. Also on 12 August 2010, the Deputy Commissioner sought orders, amongst other things, restraining Derrin from removing assets from Australia or diminishing the value of such assets. The court granted the orders sought by the Deputy Commissioner that day. Although varied from time to time, the orders have in substance continued until now. The making of orders and some of the background to the proceeding is discussed in Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 (appeal pending). 19 The notices of assessment issued to Derrin related to income tax liabilities for the years ended 30 June 2003, 30 June 2004 and 30 June 2005. In respect of each income year, there was also a general interest charge pursuant to s 204 of the ITAA 1936 and Part IIA of the TAA, which, so Mr Zafiriou deposed, "has been properly calculated in accordance with the provisions of the said Acts". Also according to Mr Zafiriou, as at 7 October 2010, income tax liabilities and general interest charges totalled $6,565,393.97, the notices of assessment being duly served on Derrin on or about 12 August 2010 "in accordance with the provisions of the ITAA 1936 and the Income Tax Regulations 1936". 20 Documents under the hand of a Deputy Commissioner of Taxation, being copies of the relevant notices of assessment pursuant to s 177 of the ITAA 1936, were exhibited to Mr Zafiriou's 11 October 2010 affidavit. Also exhibited to Mr Zafiriou's affidavit was a certificate pursuant to s 255-45 of Schedule 1 to the TAA 1953, again under the hand of a Deputy Commissioner of Taxation, which stated that: 1. Notices of the following assessments were, or are taken to have been, served on DERRIN BROTHERS PROPERTIES LIMITED under a taxation law: (a) notice of assessment as to income tax for the year ended 30 June 2003, which issued on 12 August 2010; (b) notice of assessment as to income tax for the year ended 30 June 2004, which issued on 12 August 2010; (c) notice of assessment as to income tax for the year ended 30 June 2005, which issued on 12 August 2010; 2. The sum of $6,565,393.97 is at 7 October 2010, a debt due and payable by DERRIN BROTHERS PROPERTIES LIMITED to the Commonwealth of Australia. 21 A copy of a notice of administrative penalty for failure to lodge income tax returns for these years, certified by a Deputy Commissioner of Taxation, pursuant to s 298-30 of Schedule 1 to the TAA 1953, was also exhibited to Mr Zafiriou's 11 October 2010 affidavit. Mr Zafiriou deposed that: The Notice of Administrative Penalty was duly served on [Derrin] on or about the date of issue of the notice, being 12 August 2010, in accordance with the provisions of the TAA 1953 and the Taxation Administration Regulations 1976. 22 According to Mr Zafiriou's 11 October 2010 affidaivt, Derrin has not paid the administrative penalty on or before the due date specified in the notice of administrative penalty; and, as at 7 October 2010, Derrin was indebted to the Commonwealth in respect of the administrative penalty in the sum of $3,058,859.20. This amount comprised the administrative penalties payable pursuant to s 284-75 of Schedule 1 to the TAA 1953, in respect of the failures to lodge income tax returns in the relevant years, and general interest charges for late payment of administrative penalty calculated up to and including 6 October 2010. According to Mr Zafiriou, the amount of $3,058,859.20 "has been properly calculated in accordance with the provisions of the [TAA 1953]". 23 A certificate pursuant to s 255-45 of Schedule 1 to the TAA 1953 under the hand of a Deputy Commissioner of Taxation was exhibited to Mr Zafiriou's affidavit, which stated that: 1. Notices of the following assessments were, or are taken to have been, served on DERRIN BROTHERS PROPERTIES LIMITED under a taxation law: (a) notices of assessment of penalty for failing provide a document for the year ended 30 June 2003; (b) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2004, which issued on 12 August 2010; (c) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2005, which issued on 12 August 2010; 2. The sum of $3,058,859.20 is at 7 October 2010, a debt due and payable by DERRIN BROTHERS PROPERTIES LIMITED to the Commonwealth of Australia. 24 At the 9 November hearing of the summary judgment motion, the Deputy Commissioner tendered a further certificate under s 255-45 of Schedule 1 of the TAA 1953 stating that: (a) The sum of $6,633,306.95 is at 8 November 2010 a debt due and payable by [Derrin] to the Commonwealth of Australia in respect of income tax and associated general interest charge. (b) The sum of $3,090,500.28 is at 8 November 2010 a debt due and payable by [Derrin] to the Commonwealth of Australia in respect of administrative penalties and associated general interest charge. 25 Having regard to these matters, the Deputy Commissioner claims to have established that Derrin is indebted to the Commonwealth of Australia in the amount of $3,090,500.28 as at 8 November 2010. The sum of $3,090,500.28 and $6,633,306.95 (referred to above) is $9,723,807.23, which is therefore claimed as a debt owed by Derrin to the Commonwealth and payable to the Commissioner. 26 Mr Zafiriou's October 2010 affidavit also affirmed his belief that Derrin had no defence to the Deputy Commissioner's claim. 27 In submissions filed on the question whether summary judgment should be entered, Derrin referred to the affidavit of Vanda Gould of 1 September 2010 in support of the proposition that the correctness of the amounts assessed might be doubted. The Court was informed that Derrin had lodged objections to the assessments and the Deputy Commissioner had not yet made decisions on the objections.

Bywater Investments Limited's tax liability 28 According to Mr Zafiriou, Bywater wrongly failed to provide the Commissioner of Taxation with income tax returns for the years ended 30 June 2002, 30 June 2003, 30 June 2004, 30 June 2005, 30 June 2006 and 30 June 2007, with the result that, on 12 August 2010, the Deputy Commissioner issued notices of assessment to Bywater under s 167 of the ITAA 1936. Also on 12 August 2010, the Deputy Commissioner sought orders, amongst other things, restraining Bywater from removing assets from Australia or diminishing the value of such assets. The court granted the orders sought by the Commissioner that day. Although varied from time to time, the orders have in substance continued until now. The making of the orders and some of the background to the proceeding is discussed in Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 (appeal pending). 29 The notices of assessment issued to Bywater related to income tax liabilities for the years ended 30 June 2002, 30 June 2003, 30 June 2004, 30 June 2005, 30 June 2006 and 30 June 2007. In respect of each income year, there was also a general interest charge pursuant to s 204 of the ITAA 1936 and Part IIA of the TAA 1953, which, so Mr Zafiriou deposed, "has been properly calculated in accordance with the provisions of the said Acts". Also according to Mr Zafiriou, as at 7 October 2010, income tax liabilities and general interest charges total $10,377,417.87, the notices of assessment being duly served on Bywater on or about 12 August 2010 "in accordance with the provisions of the ITAA 1936 and the Income Tax Regulations 1936". 30 Documents under the hand of a Deputy Commissioner of Taxation, being copies of the notices of assessment pursuant to s 177 of the ITAA 1936, were exhibited to Mr Zafiriou's 11 October 2010 affidavit. Also exhibited to his Zafiriou's affidavit was a certificate pursuant to s 255-45 of Schedule 1 to the TAA 1953, again under the hand of a Deputy Commissioner of Taxation, which stated that: 1. Notices of the following assessments were, or are taken to have been, served on BYWATER INVESTMENTS LIMITED under a taxation law: (a) notice of assessment as to income tax for the year ended 30 June 2002 which issued on 12 August 2010; (b) notice of assessment as to income tax for the year ended 30 June 2003, which issued on 12 August 2010; (c) notice of assessment as to income tax for the year ended 30 June 2004, which issued on 12 August 2010; (d) notice of assessment as to income tax for the year ended 30 June 2005, which issued on 12 August 2010; (e) notice of assessment as to income tax for the year ended 30 June 2006, which issued on 12 August 2010; (f) notice of assessment as to income tax for the year ended 30 June 2007, which issued on 12 August 2010; 2. The sum of $10,377,417.87 is at 7 October 2010, a debt due and payable by BYWATER INVESTMENTS LIMITED to Commonwealth of Australia. 31 A copy of a notice of administrative penalty for failure to lodge income tax returns for these years, certified by a Deputy Commissioner of Taxation, pursuant to s 298-30 of Schedule 1 to the TAA 1953, was also exhibited to Mr Zafiriou's 8 October 2010 affidavit. Mr Zafiriou deposed that: The Notice of Administrative Penalty was duly served on [Bywater] on or about the date of issue of the notice, being 12 August 2010, in accordance with the provisions of the TAA 1953 and the Taxation Administration Regulations 1976. 32 According to Mr Zafiriou's 8 October 2010 affidavit, Bywater has not paid the administrative penalty on or before the due date specified in the notice of administrative penalty; and, as at 7 October 2010, Bywater is indebted to the Commonwealth in respect of the administrative penalty in the sum of $5,120,546.66. This amount comprised the administrative penalties payable pursuant to s 284-75 of Schedule 1 to the TAA 1953, in respect of the failures to lodge income tax returns in the relevant years and general interest charges for late payment of administrative penalty calculated up to and including 6 October 2010. According to Mr Zafiriou, the amount of $5,120,546.66 "has been properly calculated in accordance with the provisions of the [TAA 1953]". 33 A certificate pursuant to s 255-45 of Schedule 1 to the TAA 1953 under the hand of a Deputy Commissioner of Taxation was exhibited to Mr Zafiriou's affidavit, which stated that: 1. Notices of the following assessments were, or are taken to have been, served on BYWATER INVESTMENTS LIMITED under a taxation law: (a) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2002, which issued on 12 August 2010; (b) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2003, which issued on 12 August 2010; (c) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2004, which issued on 12 August 2010; (d) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2005, which issued on 12 August 2010; (e) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2006, which issued on 12 August 2010; (f) notice of assessment of penalty for failing to provide a document for the year ended 30 June 2007, which issued on 12 August 2010; 2. The sum of $5,120,546.66 is at 7 October 2010, a debt due and payable by BYWATER INVESTMENTS LIMITED to the Commonwealth of Australia. 34 At the 9 November hearing of the summary judgment motion, the Deputy Commissioner tendered a further certificate under s 255-45 of Schedule 1 of the TAA 1953 stating that: (a) The sum of $10,484, 762.72 is at 8 November 2010 a debt due and payable by [Bywater] to the Commonwealth of Australia in respect of income tax and associated general interest charge. (b) The sum of $5,173,514.02 is at 8 November 2010 a debt due and payable by [Bywater] to the Commonwealth of Australia in respect of administrative penalties and associated general interest charge. 35 Having regard to these matters, the Deputy Commissioner claims to have established that Bywater is indebted to the Commonwealth of Australia in the amount of $5,173,514.02 as at 8 November 2010. The sum of $5,173,514.02 and $10,484, 762.72 (referred to above) is $15,658,276.74, which is therefore claimed as a debt owed by Bywater to the Commonwealth and payable to the Commissioner. 36 Mr Zafiriou's October 2010 affidavit also affirmed his belief that Bywater had no defence to the Deputy Commissioner's claim. 37 In submissions filed on the question whether summary judgment should be entered, Bywater referred to the affidavit of Vanda Gould of 1 September 2010 in support of the proposition that the correctness of the amounts assessed might be doubted. The Court was informed that Bywater had lodged objections to the assessments and the Deputy Commissioner had not yet made decisions on the objections. 38 The Deputy Commissioner maintained that, having regard to Mr Zafiriou's 11 October 2010 affidavit and its exhibits, the further certificate under s 255-45 of Schedule 1 of the TAA 1953 tendered at the hearing on 9 November, and the relevant provisions of the taxation legislation (set out below), the Court should be satisfied that Bywater has no reasonable prospect of successfully defending the proceeding. Relevant provisions of the taxation legislation 39 Provisions of the taxation legislation that are relevant to the Deputy Commissioner's summary judgment application in this proceeding are set forth in Bank Berhad (No 2) at [26]-[37]. I refer to those paragraphs here, without repeating them.

Summary judgment under s 31A 40 As noted at the beginning of these reasons, the Deputy Commissioner seeks an order pursuant to s 31A(1) of the FCA Act that there be judgment for it against the respondents. Section 31A relevantly provides: (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) … (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. 41 Put simply, the Deputy Commissioner says that the respondents have no defence to the entry of judgment as claimed against it. Precisely how such a claim is assessed depends on the nature of the cause of action, as well as the identity of the parties, the pleaded facts and the evidence adduced: see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at 407 [126] (Gordon J). Here, the relevant provisions of the taxation provisions referred to above are critical, together with Mr Zafiriou's 11 October 2010 affidavit evidence and its exhibits, and the further certificate under s 255-45 of Schedule 1 of the TAA 1953 tendered at the hearing on 9 November 2010. 42 In Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37], Sundberg J said the following about s 31A: The principles governing the operation of s 31A of the Act were canvassed in detail by Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (White Industries) and Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 (Boston). In White Industries 160 FCR at [59], Lindgren J considered that a claim requires "real" as opposed to "fanciful" or "merely arguable" prospects in order for it to have reasonable prospects of success as required by s 31A. Justice Rares in Boston 236 ALR at [45] was of the view that, unless there are no real issues of fact - such that "only one conclusion can be said to be reasonable" - summary judgment (or dismissal) ought not be given pursuant to s 31A. The Full Court has recently considered the summary judgment standard in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) (Jefferson Ford). Although different views were taken as to the precise operation of s 31A, the following principles appear to have been endorsed: In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial. In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford 167 FCR at [73] (Rares J) and [130] (Gordon J). The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to "specific factual or evidentiary disputes that make a trial necessary": see Jefferson Ford 167 FCR at [127] (Gordon J). As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J). This remains an accurate account of the operation of s 31A. 43 In the context of the case management system of this court, s 31A of the Act provides an efficient means of resolving litigation where the court is satisfied that the respondent has no reasonable prospect of a successful defence. The provision has previously been applied in income tax recovery proceedings: see Commissioner of Taxation v Grimaldi (No 5) [2009] FCA 765.

Consideration 44 Sections 175 and 177 of the ITAA 1936 are critical provisions for the Deputy Commissioner's summary judgment motion. The effect of s 177(1) is that notices of assessment have a conclusive evidentiary character both in respect of the due making of the assessment and, save in Part IVC proceedings, that the amount and all the particulars of the assessment are correct: see McAndrew v Federal Commissioner of Taxation (1956) 98 CLR 263 at 281-282 (Taylor J) and FJ Bloeman Pty Ltd v Commissioner of Taxation (1981) 147 CLR 360 ('Bloemen') at 376. Part IVC proceedings are review proceedings in the Administrative Appeals Tribunal and appeals to this court concerning an objection decision. The current proceedings are not proceedings under Part IVC. 45 In Bloeman at 376, the High Court held that the effect of ss 175 and 177 was to confine a taxpayer to the appeal procedures for which the taxation legislation provides. As French J said in Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371; [2004] FCA 918 ('Warrick (No 2)') at [84], "[t]he weight of High Court authority in relation to the operation of ss 175 and 177 stands against any challenge to the validity of an assessment where the purported assessment is a bona fide attempt to exercise the powers conferred by the Act, relates to the subject matter of the Act and is reasonably capable of reference to those powers". 46 In their joint judgment in Bloemen, Mason and Wilson JJ, with whom Stephen and Aickin JJ agreed, said (at 378) that the production of a notice of assessment: ... will put beyond contention the due making of the assessment so that the court cannot find that no assessment was made or that, if made, it was made for an inadmissible purpose. 47 Relevantly for present purposes, in Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168 at 187-188, Mason CJ said that this statement in Bloemen: ... proceeds upon the footing that the paramount purpose of the Act is to ascertain the liability of taxpayers to tax and that the Act, with that object in view, sets up a legislative regime whereby the Commissioner assesses a taxpayer to tax, the taxpayer being liable to pay the amount stated in the notice of assessment, subject to a reference to the Administrative Appeals Tribunal or an appeal under Pt IVC to the Federal Court. In such an appeal, it is for the taxpayer to show that the assessment is excessive. In that context, the existence of an inadmissible purpose on the part of the Commissioner plays no part. The central element of the legislative regime is the making of an assessment by the Commissioner which ascertains the taxpayer's liability to tax and the reference to the Tribunal or the appeal to the Federal Court, in which the taxpayer is entitled to dispute his or her substantive liability to tax. In such an appeal, the taxpayer is at liberty to challenge the exercise of any relevant discretion by the Commissioner. Thus, on appeal, the court will set aside the assessment if any relevant exercise of discretion by the Commissioner is affected by error of law, if he has taken an extraneous factor into account or if he has failed to consider a material factor. 48 These observations assumed that s 177 was in the nature of a privative clause, the operation of which was to be understood having regard to the principle derived from R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 ('Hickman'). In Richard Walter at 180, Mason CJ referred to the Hickman principle, clearly a reference to Dixon J's observations about privative clauses (in Hickman at 615) that: Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the grounds that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body. Applying this, Mason CJ saw s 177 as "consistent with the Hickman principle" on the basis that (at 188): Section 177 gives effect to the substantive provisions of the Act, in particular s 175, the effect of which is to ensure that the validity of an assessment does not depend upon compliance with any of the particular provisions of the Act or considerations of purpose. 49 In summary, on the one hand, the Hickman principle as stated by Mason CJ in Richard Walter does not extend the protection of ss 175 and 177 to assessments that are not made in good faith or to 'assessments' that, on their face, are not assessments at all. Nor do these provisions offer protection in the case where the Commissioner concedes that no attempt to ascertain or estimate the taxpayer's taxable income has yet been made: see R v Commissioner of Taxation (WA); Ex parte Briggs (1986) 12 FCR 310. On the other hand, the effect of ss 175 and 177 is to preclude judicial review of assessment decisions in proceedings under s 75(v) of the Constitution or s 39B of the Judiciary Act 1903 (Cth) for error of law, failure to take into account mandatory relevant considerations and breaches of procedural fairness. In conformity with this understanding, Brennan J said in Richard Walter at 196: ... if s 175 confers validity on assessments made in a bona fide attempt to exercise the power to make them, it authorises the Commissioner to determine in good faith, rightly or wrongly, the application of the general provisions of the Act to the facts of the particular case subject to correction by the objection, review and appeal procedures. That accords with the policy of the Act which most clearly appears from the text of s 177(1). See also Richard Walter at 211, 213 (Deane and Gaudron JJ), 227 (Toohey J) and 242 (McHugh J). Further, in Warrick (No 2) at [86], French J rejected an argument that the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 required a reconsideration of the authorities with respect to ss 175 and 177. 50 The Commissioner is not prevented from suing for recovery of tax debts simply because the taxpayer has not had relevant objections determined or has not exhausted review or appeal rights: see TAA 1953, ss 14ZZM and 14ZZR and Clyne v Deputy Commissioner of Taxation (1983) 48 ALR 545 at 547; (1983) 57 aljr 673 AT 675. Judgment may, however, be stayed in appropriate circumstances: see below. 51 In support of the motion for summary judgment the Deputy Commissioner has relied upon the production of certified copies of the notices of assessments and certificates of their service upon the respondents (although, at the 9 November hearing, the court was informed that service was not in issue between the parties). All the relevant notices of assessment were produced as exhibits to the affidavit of Aris Zafiriou of 11 October 2010. By virtue of ss 175 and 177, the production of the notices of assessment was conclusive evidence of their due making; and in this proceeding that the amount and all the particulars of the assessment were correct. Upon service of the notices the respondents became liable to pay the tax assessed and shown as due to the Commonwealth and, by s 255-5 of the TAA 1953, recoverable in a court of competent jurisdiction. Pursuant to s 255-45 of Schedule 1 of the TAA 1953, the evidentiary certificates bearing a Deputy Commissioner's signature were relied upon as evidence that the sums referred to in paragraphs [14], [24], and [34] were debts due and payable to the Commonwealth by them. In the case of Chemical, the total amount was $4,833,259.45; in the case of Derrin, the total amount was $9, 723, 807.23; and in the case of Bywater, the total amount was $15,658,276.74. The Deputy Commissioner relied upon s 255-45 of Schedule 1 of the TAA 1953 as prima facie evidence of the matters stated therein. 52 Counsel for the Deputy Commissioner also noted that there had recently been a change to the legislation imposing a general interest charge ('GIC') on taxpayers with overdue income tax debts and shortfall interest charge. This affected the provisions pursuant to which the Deputy Commissioner claimed GIC on unpaid income tax debts. Subsection 204(3) of the ITAA 1936 ('the former provision') had been repealed and replaced by s 5-15 of the Income Tax Assessment Act 1997 ('ITAA 1997') ('the new provision'). The change applied from 1 July 2010. There were transitional provisions for GIC remaining unpaid as at 1 July 2010: see Income Tax (Transitional Provisions) Act 1997, s 5-10 ('the transitional provision'). The effect of the change to the legislation is that in circumstances where GIC is unpaid as at 1 July 2010, the Deputy Commissioner relies upon the former provision, the new provision and the transitional provision to claim GIC on unpaid income tax debts. The change does not affect Part IIA of the TAA 1953, however, and, accordingly, the Deputy Commissioner continues to claim GIC pursuant to this provision. With respect to the respondents, the income debts were all payable prior to 1 July 2010. Accordingly, the Deputy Commissioner claimed GIC on these unpaid income tax debts pursuant to s 204 of the ITAA 1936, s 5-10 of the Income Tax (Transitional Provisions) Act 1997 and s 5-15 of the ITAA 1997. 53 For the reasons already set out, the recovery proceedings cannot be resisted upon the basis of jurisdictional error short of the failure of the Commissioner to observe the criteria referred to under the rubric of the Hickman principle. The respondents do not allege, and there is no evidence of, any such failure. 54 As the respondents properly conceded in written submissions filed on 8 November 2010, the fact that objections remain undetermined and review and appeal rights are not yet exhausted has no bearing on the question of liability. This is the combined effect of ss 175 and 177 and the evidence of certified notices of assessment and the evidentiary certificates produced to the Court. The authorities clearly establish that the policy of the taxation legislation in circumstances such as these should be given effect notwithstanding that the taxpayer's challenge to the assessments in question may ultimately be vindicated in Part IVC proceedings. I conclude that the respondents have no reasonable prospect of defending the proceeding and, save for the question of a stay, judgment should be entered against them as the Deputy Commissioner seeks. Should there be a stay? 55 In support of its stay motion, the respondents submitted that the Court should stay the Deputy Commissioner's motion for judgment and, if judgment is entered, should stay execution until after "the adjudication of objections to these assessments". The parties agreed that the principles were the same for both forms of stay. The respondents supported their motion by various affidavits, particularly an affidavit of Thomas Leslie Hollo of 8 November 2010 and two affidavits of Vanda Gould sworn on 1 November and 8 November 2010 respectively (with annexures). Reference was also made to the affidavit of Daud Yunus sworn on 30 August 2010 and two affidavits of Vanda Gould of 6 September 2010, the last three being filed in opposition to the making of freezing orders. The respondents' written submissions in support of their stay application dated 8 November 2010 also referred to another affidavit of Mr Gould of 1 September 2010. 56 The amounts assessed to the respondents and the general interest and charges accruing with respect to them are debts due to the Commonwealth and payable to the Deputy Commissioner: see TAA 1953, s 255-5(1). As noted already, the respondents can challenge the tax debts only via Part IVC of the TAA 1953. Counsel for the respondents correctly accepted that the fact the Deputy Commissioner had not yet determined the respondents' objections did not disentitle the Deputy Commissioner from pursuing recovery proceedings. The Deputy Commissioner also correctly accepted that the Court had jurisdiction to stay tax recovery proceedings or execution of judgment in such proceedings. Both parties accepted that the power to grant a stay is discretionary and is exercised, having regard to the policy of the taxation legislation, as reflected in a number of the provisions mentioned above. 57 The authorities emphasize that the power to grant a stay is exercised sparingly in respect of any proceeding for the recovery of a tax debt based on the issue and service of an assessment, and that it is incumbent on the taxpayer to justify the exercise of power. Reference may be made in this connection to Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 ('Broadbeach') at 491-493 (Gummow A-CJ, Heydon, Crennan and Kiefel JJ); Trade World Enterprises Pty Ltd v Deputy Commissioner of Taxation (2006) 64 ATR 316 at 322-323 (Nettle JA); Snow v Deputy Commissioner of Taxation (1987) 14 FCR 199 ('Snow') at 139 (French J); and DFCT v Mackey (1982) 45 ALR 284 at 287 (Moffit P) and 289 (Hutley JA); (1982) 82 atc 4571 at 4573 and 4575. 58 The harshness with which such provisions as 177(1) of the ITAA 1936 can operate in circumstances like the present is obvious enough: compare Broadbeach at 492. But, as the plurality observed in that case, s 177(1) and related provisions of the taxation legislation "implement a long-standing legislative policy to protect the interests of the revenue". The fact that pending objections have not been determined will not preclude a recovery action, as their Honours in Broadbeach made clear when they cited with approval the decision of Asprey J in Deputy Commissioner of Taxation v Niblett (1965) 83 WN (Pt 1)(NSW) 405 ('Niblett') at 411, who, as their Honours in Broadbeach said (at 492), "struck out pleas of non-liability to a recovery action instituted by the Deputy Commissioner in the Supreme Court of New South Wales while objections were pending under what was then s 185 of the [ITAA 1936]". Also at 492, their Honours in Broadbeach set out the following passage from Asprey J's judgment: It may be thought to be a hardship that a taxpayer should have to pay the tax assessed when an objection to the assessment has not been decided upon but there are obvious financial considerations of high policy that must be weighed in the balance against cases of individual hardship with which the Commissioner through the appropriate use of his powers under [the Assessment Act] can cope … Where the meaning of the words of a statute is clear 'it is not open to the Court to narrow or whittle down the operation of the Act by seeming considerations of hardship or of business convenience or the like' - Attorney-General v Carlton Bank [1899] 2 QB 158 at 164. These observations are also pertinent to the present case. 59 At the general level, the approach of Ireland J in Deputy Commissioner of Taxation v Ho (1996) 131 FLR 188 ('Ho') is consistent with the approaches of Asprey J in Niblett and the plurality in Broadbeach. In Ho as in the current case, the relevant notice of assessment was a default assessment, although, in contrast to the current case, there was some doubt as to whether a valid objection had been lodged. Ireland J stated (at 192): Whilst most cases in which a stay of recovery proceedings was sought were commenced after an objection had been lodged and rejected by the Commissioner and thus appeals were in fact pending, either to the Administrative Appeals Tribunal or Federal Court, I do not consider this to be any basis of distinction. There is no difference in substance that the appeal from the Board of Review is pending on the one hand and that an objection is yet to be lodged on the other. Again this is, in my opinion, the direct effect of ss 14ZZM and 14ZZR. By virtue of the definition of "taxation decision" in s 14ZQ, ss 14ZZM and 14ZZR operate inclusive of an objection against a notice of assessment. 60 Referring to this reasoning, the respondents' counsel argued that Ireland J erred in Ho in assimilating, for present purposes, an undetermined objection to a tax review or appeal pending in the Administrative Appeals Tribunal or the court. Counsel argued that the lack of express provision in respect of an undetermined objection meant that in the case of an undetermined objection (as in the present case) "the bar is slightly lower" for a stay applicant. In this context, counsel also drew attention to the Commissioner's legislative obligation to determine the objection: see TAA 1953, s 14ZY. 61 Whilst I consider that there is some force in the respondents' proposition that, contrary to Ireland J's view, the effect of the definition of "taxation decision" in s 14ZQ is not to assimilate an objection to the "review" or "appeal" of which ss 14ZZR and 14ZZM speak, this does not in fact diminish to any material extent the need for the taxpayer to justify the exercise of power to grant a stay in the taxpayer's favour. The policy of the legislation is not affected by the fact that an objection is pending and undetermined. In any event, as the respondents acknowledged, the absence of an express provision dealing with undetermined objections could at best from its point of view do no more that slightly lower the bar for a stay. For the reasons that follow, even if this were correct, the respondents would not cross the bar. 62 The parties agreed (though, as can be seen, not unreservedly) that the principles governing the grant or refusal of a stay were as stated by French J in Snow at 139 as follows: 1. The policy of the ITAA as reflected in its provisions gives priority to recovery of the revenue against the determination of the taxpayer's appeal against his assessment. 2. The power to grant a stay is therefore exercised sparingly and the onus is on the taxpayer to justify it. 3. The merits of the taxpayer's appeal constitute a factor to be taken into account in the exercise of the discretion (although some judges have expressed different views on this point). 4. Irrespective of the legal merits of the appeal a stay will not usually be granted where the taxpayer is party to a contrivance to avoid his liability to payment of the tax. 5. A stay may be granted in the case of abuse of office by the Commissioner or extreme personal hardship to the taxpayer called on to pay. 6. The mere imposition of the obligation to pay does not constitute hardship. 7. The existence of a request for reference of an objection for review or appeal is a factor relevant to the exercise of the discretion. At a general level, this statement of principles was re-iterated by French J in Warrick (No 2) at [105]-[106] and has been repeatedly cited with approval by other judges. 63 In their written submissions in support of their stay application dated 8 November 2010, the respondent companies argued that a stay was appropriate because: (1) their assets could only be sold at significant financial loss; (2) they have strong grounds of appeal in the Part IVC proceedings; and (3) they have done everything possible to progress its Part IVC appeal. 64 The respondents also argued that they would suffer prejudice, or possible prejudice, in the event a judgment was entered by virtue of the principle that the cause of action merges in the judgment and the difficulty it would face in setting judgments aside. The Deputy Commissioner responded that, if the judgment debts had been wholly or partly satisfied at the time the respondents succeeded in their Part IVC challenges, then the Commissioner would make restitution and would, if requested, provided appropriate confirmation of that outcome, with a view to nullifying any adverse commercial impact. The Commissioner's conduct in this regard was, plainly enough, consistent with the overarching policy of the taxation legislation. Even if I were to accept that the respondents would suffer some commercial injury by the entry of judgment against it, such injury would not amount to exceptional hardship sufficient to militate in favour of a stay. This kind of commercial injury is not akin to the "extreme personal hardship" that has justified a stay in other circumstances: cf Deputy Commissioner of Taxation v Denlay [2010] QCA 217. 65 Also as to hardship, the respondents submitted, in their submissions dated 8 November 2010, that the 8 November 2010 affidavit of Vanda Gould showed, amongst other things, that the respondents held shares in the Australian Stock Exchange. In written submissions, the respondents said: The sale of the shares under forced circumstances, which would also be a matter of public knowledge, is likely to result in still further losses. The hardship likely to result is that the respondents would incur a financial loss of disproportionate size to the face value of its tax liabilities, when … the respondents have a high likelihood of successfully challenging the primary liability. As noted in the previous paragraph, claims of commercial hardship of this kind do not militate strongly in favour of a stay, particularly having regard to the evident policy of the taxation legislation. The following observations as to the respondents' arguments on the merits also diminish the cogency of the respondents' submissions as to hardship. 66 As to the merits of the respondents' Part IVC challenges, in written submissions, the respondents claimed that, because of the capital gains tax exemption in Division 855 of the Income Tax Assessment Act 1997 (Cth) ('ITAA 1997'), then, if the Deputy Commissioner was wrong in the view that their "dealings in shares have constituted trading rather than capital investment", the entire basis of the assessments would fail. The respondents also argued that the Deputy Commissioner's failure to give the respondents the benefit of trading stock elections meant that the correctness of the assessments was necessarily doubtful. 67 At the hearing on 9 November 2010, the respondents relied on the 8 November 2010 affidavit of Vanda Gould and its annexures in support of the proposition that they were not to be properly characterized as share traders. Annexures A, B and C were tables showing the movements in the market prices of the companies in which each of the respondents holds, or held, shares which have been assessed to tax. Only tables 1 and 2 and figures 1 and 2 of annexure D were, by agreement, treated as admissible evidence on this stay application; the balance of the annexure had the status of submissions. Counsel for the respondents submitted that, as a matter of general impression, the pattern of transactions was not that of a share trader, referring to John v Commissioner of Taxation (1989) 166 CLR 417 at 430; Smith v FCT 2010 ATC 10-146; FC of T v Shields 99 ATC 4,783 and 99 ATC 2037; and Williams v Federal Commissioner of Taxation (1972) 128 CLR 645 at 656. Also, by reference to the tables which formed annexures A, B and C, the respondents' counsel submitted that the quantum of the assessments was clearly wrong. 68 As French J observed in Snow, there is a difference in judicial opinion about the significance of the merits of the taxpayer's challenge to an assessment or assessments: compare Ho at 191, Mackey at 4575 with Cywinski v DFCT (1989) ATC 4512 ('Cywinski') at 4517-8 (Kaye J, with whom Gobbo J agreed). Here, as noted, the Part IVC process is at the stage of undetermined objections. Perhaps there are cases in which consideration of the merits may assist in determining whether or not to grant a stay. I do not consider that these cases are in this category. It would be inappropriate for me in this case to enter on the very questions that the Commissioner or, perhaps, at a later date the Administrative Appeals Tribunal or this court on a taxation appeal may be called on to determine. Furthermore, the material before me is too sparse to permit a firm view to be taken. As most, the respondents' case might support the proposition that they have arguable grounds for challenging the assessments in question. Even if I were to accept this proposition, however, it would not justify the grant of a stay, given the clear policy of the taxation legislation, as discussed in the authorities previously mentioned: see, for example, Cywinski at 4518. 69 As to the parties' conduct in progressing the tax objections and this proceeding, the respondents relied on Warrick (No 2) in support of the proposition that a stay should be granted. In that case as in this a Deputy Commissioner instituted recovery proceedings for unpaid income tax and penalties and subsequently applied for summary judgment. French J held that the taxpayer in that case had no arguable defence to the recovery action, but also held (at [2]) that "because the Australian Taxation Office … delayed in resolving the taxpayer's objections without any satisfactory explanation, execution of the judgment [would] be stayed" until a specified date that permitted the objections to be determined. French J concluded (at [106]) that: … the priority given to recovery of the revenue should be qualified by an appropriate recognition of the taxpayer's right to object and to have his objection determined and the Commissioner's duty in that respect … I … consider that no satisfactory explanation has been given for the delay in and failure to deal with the objections to the assessments. In my opinion, execution of the judgment should be stayed for a period sufficient to enable Mr Warrick to require the making of an objection decision pursuant to s 14ZYA of the TAA and to take advantage of the deemed refusal at the expiry of 60 days from that period to institute a review process. The stay will be subject to liberty to apply. The result was that the Court granted a stay from 13 July 2004 until 28 January 2005 when the objections were to be adjudicated. 70 In this case, the respondents relied on the fact that they had lodged objections on 14 September 2010, within about a month of receiving the notices of assessment. The respondents submitted that they had acted expeditiously notwithstanding their foreign domicile and that, as in Warrick (No 2), the objections were yet to be determined. The respondents noted that they was unable to apply under s 14ZYA of the TAA 1953 to cause the Commissioner to determine the objection (in default of which there would be a deemed disallowance) because the Commissioner had since made a request for further information. The respondents estimated that they would be unable to make such an application before the end of January assuming they were able to provide the Commissioner with the information sought within the relevant time. The respondents' contention was that the Deputy Commissioner had moved expeditiously for judgment; that they had lodged their objections with the Commissioner speedily; but the Commissioner had moved at a more leisurely pace with respect to determining their objections. 71 In the case of Chemical, it may be that, in contrast to the Bank in Bank Berhad (No 2), it was served with the notices of assessment before the recovery proceeding was instituted: see Mr Zafiriou's 12 August 2010 affidavit at par [40]. Like the Bank, however, it would seem that Derrin and Bywater were not served with the notices of assessment before the recovery proceedings were instituted. 72 The Deputy Commissioner informed the court that the objections would not be determined before 31 March 2011 - some seven months after the assessments were issued and these proceedings were instituted. The Deputy Commissioner stated and the respondents conceded that this date was the date agreed between them at a meeting in September. Further, as the Deputy Commissioner pointed out, once the proceedings were instituted and the freezing orders sought and obtained, the Deputy Commissioner was obliged to move in the recovery proceedings with some alacrity. In these circumstances, including the fact that the date for determining the Bank's objections was an agreed date, the analogy with Warrick (No 2) breaks down. 73 I have reached the conclusion that the present case comes squarely within the principles in Niblett, as stated by Asprey J and referred to with approval in Broadbeach: see [58] above. As Asprey J said, it might well be thought to be a hardship that a taxpayer should have to pay the tax assessed when the objections to the relevant assessments have not been decided but there is the clear policy of the taxation legislation to be weighed in the balance. 74 The respondents also referred to some miscellaneous matters in written submissions, including the fact that they had paid substantial withholding tax. They also submitted that the freezing order gave the Deputy Commissioner "a higher than usual level of security in respect of the prospective debts", noting too that interest continued to accrue. I do not consider that these considerations would in the circumstances discussed justify the grant of a stay. 75 Essentially for these reasons, had matters stopped there, I would have dismissed the respondents' motion for a stay. 76 At the hearing on 9 November 2010, however, the Deputy Commissioner also relied on a further affidavit sworn by Mr Zaffiriou on 8 November 2010, saying "it's a relatively small aspect of the matters for consideration" by me. Had the respondent's not made a subsequent application (to which I am about to turn), I would not have found it necessary to dwell on this issue. In view of the respondents' later application, it is, however, necessary to describe the evidence and submissions before the court on 9 November in order to assess what the respondents said at the hearing before me on 22 November 2010. 77 In his 8 November 2010 affidavit (filed 9 November), Mr Zafiriou stated that: I am informed and believe that on 5 November 2010 Mr Matthews Evans, an employee of the ATO, searched the records maintained by Registrar of Companies for England and Wales, Companies House (hereafter "Companies House"). This search revealed that: On 3 September 2010, a charge was created over the assets of [Chemical] and registered with Companies House. Now produced and shown to me and marked "AZ-A1" is a copy of the following documents obtained from Companies House: Particulars of Mortgage of Charge in respect of [Chemical]; Certificate of the Registration of a Mortgage or Charge dated 15 September 2010 Certificate of the Registration of a Mortgage or Charge dated 20 September 2010 The documents 'AZ-A1' record, amongst other things, the following: The charge was created on 3 September 2010. The charge secures monies advanced to [Chemical] being not less than the sum of [] 10,000,000.00 [pounds] (being the equivalent of approximately AU$15,906,281.49 The chargee is JA Investments Limited, a company registered in the Cayman Islands. The charge was registered on 8 September 2010 at the request of Mr P Borgas as director of [Chemical] 78 With respect also to Derrin, Mr Zafiriou deposed that: On 3 September 2010, a charge was created over the assets of [Derrin] and registered with Companies House. Now produced and shown to me and marked "AZ-A2" is a copy of the following documents obtained from Companies House: Particulars of Mortgage of Charge in respect of [Derrin]; Certificate of the Registration of a Mortgage or Charge dated 15 September 2010 The documents 'AZ-A2' record, amongst other things, the following: The charge was created on 3 September 2010. The charge secures monies advanced to [Derrin] being not less than the sum of [] 12,500,000.00 [pounds] (being the equivalent of approximately AU$19,086,519.52 The chargees are JA Investments Limited, a company registered in the Cayman Islands, and M H Investments, a company registered in the Cayman Islands. The charge was registered on 8 September 2010 at the request of Mr P Borgas as director of [Derrin] 79 Mr Zafiriou further stated that he conducted a search of records at Companies House on 8 November 2010 in respect of Chemical and Derrin, which revealed that these companies' assets were "not subject to any encumbrances prior to 12 August 2010". Letters were subsequently exchanged between the parties' solicitors concerning these matters. 80 In response to Mr Zafiriou's 8 November affidavit, the respondents, Chemical and Derrin, relied on another affidavit of Mr Gould, also sworn on 8 November. Mr Gould began by noting his receipt of a letter dated 5 November 2010 from the Australian Government Solicitor (on behalf of the Deputy Commissioner) addressed to Henry Davis York, solicitors for the respondents. The letter concerned the creation of the charges. Mr Gould went on to say that he was "aware that 2 charges over the assets of [Chemical] and [Derrin] were registered in the United Kingdom on 3 September 2010". He continued: I understand that [Chemical] and [Derrin] registered those charges based on my advice to Mr Borgas on the effect of the freezing orders made against [Chemical] and [Derrin] on 12 August 2010. After the Freezing Orders were made, I took the view that the terms of the Freezing Orders were limited to dealings of the assets of [Chemical] and [Derrin] within the Commonwealth of Australia and that the terms of the Freezing Orders were expressly limited to the Commonwealth of Australia. [Chemical] and [Derrin] are presently and have for a number of years been principally financed by at call loans. As the present litigation with the Commissioner of Taxation has attracted significant adverse publicity for the Respondents, and there seemed to be a danger of calls being made, I advised Mr Borgas that registering a charge against assets of [Chemical] and [Derrin] would give these creditors greater comfort about their loans. As I indicated above, I took the view that the Freezing Orders did not prevent [Chemical] and [Derrin] from doing this, particularly in a jurisdiction outside of the Commonwealth of Australia. I also advised Mr Borgas that it was my opinion that the charges would be ineffective against Australian assets until registered in the Commonwealth of Australia, and that it is not possible to register charges in Australia until the Freezing Orders are lifted. That was another reason why I formed the view that the Freezing Orders did not extend to charges being registered in an overseas jurisdiction. At all times I have held the genuine and honest belief that the view I took of the Freezing Orders were correct and appropriate. Mr Borgas had authorised me to give an undertaking to the Court that [Chemical] and [Derrin] will take immediate steps to amend and re-register the debt instruments so that they specifically exclude, and do not charge, any Australian assets of those companies, or otherwise, to remove the charges over the assets. Based on my experience with the registration and removal of charges in the United Kingdom, I expect that it would be possible for the charges to be removed or amended to exclude Australia within 14 days. 81 The freezing orders forbade the companies from disposing of, dealing with or diminishing the value of any of their assets in Australia up to a specific unencumbered value. At the hearing on 9 November 2010, the respondents, Chemical and Derrin, submitted that the registering of a charge in the UK over all of these companies' assets (including assets in Australia) was not in breach of the freezing orders first made on 12 August 2010. Whilst the Deputy Commissioner accepted that there had been no disposal, counsel maintained that there had been a dealing with or a diminishing in value. 82 In particular, at the 9 November hearing, the Deputy Commissioner drew attention to the fact that JA Investments Limited (the chargee in Chemical's case) was the ultimate parent company of Chemical and also incorporated in the Cayman Islands: see Mr Zafiriou's 12 August affidavit, exhibit AZ1, at p 641. Further, the Deputy Commissioner drew my attention to the fact that par 36(a) of Mr Zafiriou's 12 August affidavit also showed that the directors of Chemical were Mr Peter Martin Borgas, Mr Timothy Hendrick Borgas and Ms Winnie Borgas. In the case of Derrin, Mr Borgas was director: see Mr P Borgas' 18 August 2010 affidavit in proceeding VID 672. Also at the 9 November hearing, counsel for the Deputy Commissioner said: I don't know the relationship between J A Investments and [Derrin], but because Derrin and Chemical are related and JA is the parent of Chemical, it's a reasonable inference that JA and Derrin are not strangers but closely related. Derrin charge is in favour of JA Investments and another entity called MH Investments, also incorporated in the Cayman Islands. … So we take it from Mr Gould's affidavit that the charge was given by [Chemical] and [Derrin] over its Australian assets in the full knowledge of the terms of the freezing order not to deal with or diminish the value of assets, and that it was advertent and advised, and as it's only when the applicant has inquired into the matter that Mr Borgas, on behalf of both Chemical and Derrin, has retreated and undertaken to take steps to exclude the Australian assets from the charge. So there's no satisfactory explanation of why that deliberate step was taken to seek to give an unregistered proprietary interest to JA Investments on the one hand and MH Investments on the other [that] would compete with the unsecured rights of the Commissioner as the judgment creditor in respect of the Australian assets. … And I think that the fact that Mr Borgas, who is a director of the charger entities, has given an undertaking to take steps to exclude the assets from the charge is another basis for inferring the close connection between the charger and the chargee entities. 83 The respondents argued that merely registering a charge did not constitute a disposal of, dealing with, or diminishment of the value of assets, although they accepted that their conduct in this regard might affect the Commissioner's ability to recover against those assets. Further, in reply the respondents' counsel tendered, without objection, another affidavit of Mr Gould of 1 November 2010, which was said to show that Chemical and Derrin had assets in Australia exceeding their tax debts. In any case, so the respondents said, the registering was "inadvertent" in the sense that the charges were registered on the basis of Mr Gould's advice that registration in the UK would not entail breach of the Freezing Orders; and, further, Mr Borgas had given an undertaking that remedial steps would be taken forthwith. 84 As already indicated, until the hearing of 22 November, issues raised in connection with the charges granted by Chemical and Derrin did not in my opinion require any close analysis for the purposes of determining the respondents' stay application. This was because, having regard to the other matters previously discussed, I was of the view that a stay should not be granted in any event. It will be recalled that the only suggested relevance of the charges was to assist the Commissioner's case against a stay.

Application to re-open 85 Accordingly, as things stood after the hearing on 9 November, I would have dismissed the respondents' motion for a stay. Some seven days later, however, on 16 November, the respondents applied, by notice of motion bearing that date, for orders: 1. That the respondents be granted leave to re-open their case in respect of the applications for a stay of judgment and execution of judgment so that they may adduce fresh evidence; and 2. That the applicant be granted leave to adduce evidence in reply; and 3. That the court consider such further evidence on the papers, without oral submissions. 86 In support of this motion, the respondents relied on an affidavit of Thomas Leslie Hollo sworn on 16 November 2010 and a further affidavit of Mr Gould sworn on 16 November 2010. Notwithstanding paragraph [3] of the notice of motion, counsel for the respondents stated that: (1) the entirety of the evidence that they wanted to rely on with respect to the March date was contained in the 16 November affidavit of Mr Hollo, with its exhibits; and (2) if the court acted on the assumption that the amendment to the debenture deeds to which Chemical and Derrin were party would in due course be made, as Mr Gould and Mr Borgas indicated, then the respondents did not desire to adduce evidence beyond that in the 16 November affidavit of Mr Hollo and 16 November affidavit of Mr Gould. The Deputy Commissioner also stated that he had placed all his evidence in reply an affidavit of Sue-Anne Thompson of 21 November 2010, to which correspondence was exhibited, and the 19 November affidavit of Mr Zafiriou. The parties made submissions to the Court on this basis. 87 The 16 November affidavit of Mr Hollo and the 16 November affidavit of Mr Gould, which were filed in the respondents' proceeding, were identical to the affidavits sworn by the same deponents on the same day and filed in VID 672 of 2010, which was Bank Berhad (No 2). The evidence of the deponents is set forth in reasons for judgment in that case and I shall not repeat it here. The submissions made on behalf of the respondents here were the same as those made on behalf of the Bank in that case. The Deputy Commissioner's submissions were also the same. For the reasons stated in Bank Berhad (No 2) I would not grant the respondents leave to re-open to adduce further evidence concerning their agreement or acquiescence to the March 2011 deadline for determining its taxation objections. 88 In the respondents' argument was, however, that there was a second stated ground upon which they sought to re-open, which was to adduce further evidence "in respect of the suggestion that two of the respondents, Chemical and Derrin, might be in breach of the freezing orders by registering a charge in the United Kingdom over their assets, to the possible prejudice of the Deputy Commissioner. This was, so the respondents conceded, "a potentially important discretionary factor". The respondents sought to adduce evidence that the debt instruments creating the charge were in the course of being amended to exclude Australian assets, and being re-registered. 89 In addition to the 8 November affidavit of Mr Gould referred to at paragraph 80 above, Mr Gould's further 16 November affidavit relevantly stated: … I spoke to Mr Peter Borgas on the evening of Wednesday, 10 November 2010 and advised him that the debentures registered by [Chemical] and [Derrin] should be immediately varied to exclude Australian assets held by those entities. In that conversation Mr Borgas said words to the effect: I will contact my London firm of solicitors, Bishop & Sewell, and give instructions to amend the debenture deeds so that any possible reference to Australian assets will be excluded. I'll let you know when that has happened. Based on my previous dealings with Mr Borgas I believe that he will attend to varying the debentures as soon as possible. Annexed to this affidavit were letters dated 8 November 2010, from Mr Borgas (approved by Mrs Winny Borgas) to Mr Gould authorising Mr Gould to give undertakings "to remove the charge" given by Chemical to JA investments Limited, and by Derrin to JA Investments Limited and M H Investments. 90 The Deputy Commissioner relied on a further affidavit sworn 19 November 2010 by Mr Zafiriou, which stated that, on 11 November 2010, he had received copies of the debentures dated 3 September 2010, under cover of a letter dated 11 November 2010 from Henry Davis York. Mr Zafiriou further deposed that: I am informed and believe that on 19 November 2010 Mr Matthews Evans, an employee of the ATO, searched the records maintained by the Registrar of Companies for England and Wales, Companies House … Mr Evans informed me and I believe that the searches made by him disclose that no additional documents have been lodged with Companies House in respect of [Chemical] or [Derrin] since the registration of the charges on 8 September 2010. 91 The respondents' application for leave to reopen in respect of the amendment of the charges (as in respect of the March 2010 date) was made after a hearing at which evidence was tendered and submissions made by the opposing parties, and the Court had reserved its decision. The jurisdiction is well recognised: Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010 at [18]; Murray v Figge (1974) 4 ALR 612; and Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266267. In Inspector General in Bankruptcy v Bradshaw [2006] FCA 22 ('Bradshaw') at [24], I said that: The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25]. 92 The stated ground for the respondents' application to re-open was to adduce further evidence. In relation to the charges, the respondents did not suggest that theirs was a case of inadvertent error or mistaken apprehension of the facts or law. Relevantly, as already stated, the respondents sought to adduce evidence that, on Mr Gould's advice, Mr Borgas had said that he would instruct solicitors to amend the debenture deeds to exclude reference to Australian assets. 93 Counsel for the respondents submitted that: … where this relevant factor could well simply be a mistake, and a mistake that will disappear simply as the respondents go about reregistering the debentures in a more acceptable form, that that particular balancing factor melts away, and … it would be an unsatisfactory state of affairs for the court to adjudicate the application for a stay with the possibility of breach of the freezing orders lurking as a discretionary consideration, because on any view the breach of freezing orders by an applicant is a very serious matter, and it's something that would certainly weigh quite heavily in the balance in any discretionary exercise of power. 94 Plainly enough, Mr Gould's most recent affidavit contains little in the way of fresh evidence. At the hearing on 9 November, the respondents relied on Mr Gould's 8 November affidavit for the proposition that Mr Borgas had authorised him to give an undertaking to the Court that Chemical and Derrin would take immediate steps to amend and re-register the debt instruments so that they specifically exclude, and do not charge, any Australian assets of those companies. The new affidavit was to the effect that Mr Borgas had said that he would instruct his solicitors to undertake the legal work necessary for the amendment. Perhaps realising the difficulty in his submission as to fresh evidence, counsel for the respondents suggested that the final determination of the stay application be held over until the amendment had been effected. At my invitation, the Deputy Commissioner indicated, however, that, for the purposes of determining the stay application, he would be prepared for the court to act on the assumption that the amendment will in due course be made. In this circumstance, there was no basis for postponing the determination of the stay application. Even on this basis, however, I have difficulty in viewing this as fresh evidence. Rather, the amendment of the debenture deed, when accomplished, would be in substance the performance of the undertaking given by Mr Gould in his 8 November affidavit, which was before the court on 9 November 2010. On the last occasion, the respondents informed the court that the process of amendment would take about 14 days to complete. No-one has challenged this expression of intention and estimate of time. 95 Moreover, it appears to me that the respondents' so-called fresh evidence might just as easily have been before the court on 9 November: the respondents did not adduce any evidence that might explain why evidence of the kind referred to in Mr Gould's 16 November 2010 affidavit could not have been presented at the 9 November hearing. At that stage the court might also have been asked to act upon the assumption that the amendment would in due course be made. The absence of explanation is a relevant factor in circumstances such as these: see Smith v New South Wales Bar Association (1992) 176 CLR 256 ('Smith') at 266-7. The failure to give an explanation tells against the grant of leave to re-open: Smith at 266. 96 I shall not rehearse the other points that the Deputy Commissioner made about the evidence upon which the respondents relied or sought to rely, which, if accepted, tended to militate further against the grant of a stay. This is because, whether or not the creation of the charges constituted a breach of the freezing orders, as already stated, I would not grant the stay in any event. The further evidence as to the amendment of the debenture deeds that the respondents rely on to re-open is, as the Deputy Commissioner said, "akin to a mitigation in terms of the factors" to be taken into account by the court on the stay application if the court were to hold that the creation of the charges was in breach of the freezing orders. Since it is unnecessary to investigate this issue for the purpose of determining the respondents' stay application, the further evidence that the respondents would rely on is beside the point. 97 The overriding principle is, so the parties agreed, whether, taken as a whole, the justice of the case favours the grant of leave to re-open: see Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478. The materiality of the evidence in question and its tendency (if accepted) to affect the outcome of the case may be subsumed in an inquiry into the justice of the case. Here the further evidence relating to the amendment of the debenture deeds on which the respondents rely to re-open their case would not affect the outcome of the determination of the respondents' stay application, because I would decline to grant a stay irrespective of whether the creation of the charges breached the freezing orders. The evidence upon which the respondents would rely can only be relevant to counteract the adverse effect on them of such a finding. In the circumstances of this case, considered as a whole, I do not consider that the justice of the case favours the grant of leave to re-open. DISPOSITION 98 For the reasons already stated, I would order that there be judgment for the Deputy Commissioner: (1) against Chemical in the amount of $4,833,259.45; (2) against Derrin in the amount of $9,723,807.23; and (3) against Bywater in the amount of $15,658,276.74. Save for the orders made at the hearing on 9 November 2010, I would order that the respondent's motion, notice of which is dated 8 November 2010, be otherwise dismissed. Further, I would order that the respondent's motion, notice of which is dated 16 November 2010, also be dismissed. I would further order that the respondents pay the Deputy Commissioner's costs. I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.