Deputy Commissioner of Taxation v Chemical Trustee Limited

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1407 of 2012

JUDGE: BUCHANAN J DATE: 21 SEPTEMBER 2012 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The application with which I am dealing today is supported by affidavits from Aris Zafiriou sworn on 17 September 2012, 18 September 2012 and 21 September 2012. In addition, a large volume of material has been tendered as an exhibit to the affidavit of 17 September 2012. The applicant has issued notices of assessment to the respondent on 9 July 2012 in the sum of $1,413,219.76, and 20 September 2012 for an amount which results in a total, when added to the earlier assessment, of $26,927,500.54. Those notices of assessment are not open to present challenge. 2 On 18 September 2012, the applicant brought an application seeking judgment pursuant to the assessments issued on 9 July 2012. An order is now sought permitting the filing of an amended application that seeks judgment pursuant to the assessment dated 20 September 2012. I can see no reason why leave to amend should not be granted and I will so order. The applicant has also sought a freezing order arising from its assessment of 20 September 2012 and the proceedings which it has brought in consequence. In separate proceedings, freezing orders were made against the present respondent by Kenny J (see Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014). An appeal against that judgment was dismissed (Hua Wang Bank Berhad v Deputy Commissioner of Taxation [2010] FCAFC 140). 3 The judgment which was granted in the proceedings in which those freezing orders were made (for a sum of approximately $4.8 million, which was later reduced to approximately $3.6 million) has now been paid. An application was accordingly made to the docket judge dealing with proceedings under Part IVC of the Taxation Administration Act 1953 (Cth) arising from the earlier assessment to discharge the earlier freezing orders. That application was made on 18 September 2012. Perram J has indicated that he is disposed to discharge those earlier freezing orders and will give further attention to an order to that effect on Tuesday, 25 September 2012. The application for freezing orders which is now made is for a considerably higher sum than the sum secured by the earlier freezing orders. However, that does not raise any different question of principle. 4 In the proceedings today, Mr Hyde Page has been at pains to urge upon me that there is no evidence that there is any real danger of funds being transferred from Australia if a freezing order is not made. It follows from that that there is no discernible prejudice in making an interim order for a very short period to allow the matter to receive further consideration by the docket judge who is in a much better position than I am to assess whether it is necessary or desirable for a freezing order to remain in place. In those circumstances, I am satisfied that a case has been made out for freezing orders for the period sought, namely, until 25 September 2012. I make orders in the form of the orders sought by the applicant, to remain in force until 4.15 pm on 25 September 2012. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.