(c) Derrin Proceeding
46 The judgment which Derrin seeks to stay was given by Kenny J on 25 November 2010 and varied by me by the excision of the amount of the general interest charge on 8 June 2012. Derrin sought a stay from Kenny J but that was rejected. At the time of that application there were no Part IVC proceedings on foot because the Commissioner had not yet resolved the objections which had been lodged by Derrin. Subsequently the Commissioner rejected Derrin's objections after which it then commenced Part IVC appeal proceedings in this Court and sought, at the same time, a stay of the judgment given by Kenny J. On 8 June 2102 I rejected that application: Deputy Commissioner of Taxation v Hua Wang Bank (No 3) [2012] FCA 594. In the course of doing so I declined to assess the merits of Derrin's Part IVC appeal proceedings holding instead that this was forbidden by the language of s 14ZZR of the TAA 1953 ('The fact that an appeal is pending in relation to a taxation decision does not in the meantime interfere with, or effect, the decision and any tax, additional tax or other amount may be recovered as if no appeal were pending'). I reasoned that I could not assess the merits of a proceeding whose existence I was bound to ignore. On 12 February 2013 the Full Court concluded this was an incorrect understanding of the operation of s 14ZZR and remanded the matter to me for further consideration: Southgate Investment Funds Limited v Deputy Commissioner of Taxation [2013] FCAFC 10.
47 I respectfully record my disagreement with the Full Court's reasoning which does not, so far as I can see, explain how one can assess the merits of something which one is required to assume does not exist.
48 In any event, I am bound to implement the Full Court's reasoning. At [77] the Full Court set out its summary of the principles to be applied:
(a) the power to grant a stay should be exercised sparingly and the taxpayer bears the onus of persuading the Court that a stay ought to be granted in the particular circumstances;
(b) great weight must be given to the clear legislative policy manifested in provisions such as ss 14ZZM and 14ZZR of the TAA which give priority to the recovery of taxation revenue notwithstanding that a taxpayer has a Part IVC proceeding on foot. The Commissioner is placed by the legislation in a position of special advantage and is generally free to pursue recovery proceedings despite the pendency of Part IVC proceedings;
(c) the merits of pending Part IVC proceedings may be a relevant consideration to be taken into account in the exercise of the discretion, but the court should not attempt to determine the merits unless it has sufficient material before it to do so and it should avoid speculation;
(d) in cases where a judge is unable to form even a tentative view of the strength of Part IVC proceedings, it is unlikely that the judge's discretion in refusing a stay will miscarry by reason only of the judge being unable on the material before him or her to reach a view as to the taxpayer's prospects of success in having the assessment overturned;
(e) it is too narrow a view of the discretion to grant a stay of proceedings or execution merely because Part IVC proceedings are pending, or because on review of those proceedings there appears to be an arguable case or complex questions to be determined by the AAT or the Court;
(f) that is not to say, however, that the outcome of Part IVC proceedings has to be certain in the sense that they are bound to succeed or fail. That puts the bar too high;
(g) in cases where the Court considers that it is in a position to assess the merits of pending Part IVC proceedings and that it is appropriate to do so, the weight to be attached to those merits will vary according to the relative strength of the merits. But the taxpayer needs to have more than merely an arguable case;
(h) similarly, more weight would be given to the merits factor if the case is one where the Commissioner has abused his position or it is clear that the Commissioner is endeavouring to collect tax in defiance of a decision of the High Court or other superior court which is precisely in point;
(i) due acknowledgment should be given to the asperity with which provisions such as ss 14ZZM and 14ZZR may operate, but in appropriate circumstances a court might consider that a stay is warranted in cases of extreme hardship to a taxpayer, noting however that:
(i) the mere obligation to pay income tax of itself does not impose extreme hardship; and
(ii) the possibility that the taxpayer may be bankrupted is generally not of itself an extreme hardship, however, different considerations may arise if, for example, it is demonstrated that the execution of a judgment debt would deprive the taxpayer of the financial resources needed to prosecute extant Part IVC proceedings;
(j) irrespective of the merits of pending Part IVC proceedings, a stay will not usually be granted where the taxpayer is party to a contrivance to avoid liability to pay the tax; and
(k) other considerations may need to be taken into account in determining whether to exercise the discretion in a particular case, such as any conduct on the part of the taxpayer or the Commissioner which impacts upon the efficient and expeditious conduct of Part IVC proceedings.
49 Derrin's argument is that:
(a) the strength of its Part IVC proceedings are such that, by themselves, they justify the grant of a stay;
(b) alternatively those merits in combination with some or all of the following justify the same conclusion;
(c) the Deputy Commissioner has the benefit of freezing orders over Derrin's assets;
(d) the judgment in question is a summary judgment;
(e) Derrin will suffer economic prejudice in the event that the shares are sold in the sense that because the shares in question are reasonably illiquid it is unlikely to be able to reconstruct the same shareholding if the money be refunded on the successful determination of the Part IVC proceedings; and
(f) execution is being sought contrary to the Commissioner's own written policy regarding debt collection.
50 I deal with these in turn.
51 The first question to be determined is whether I should assess the merits of Derrin's Part IVC appeal. According to 77 of the Full Court's judgment in Southgate Investment Funds Limited I should not embark on that course unless I have sufficient material to do so and in that regard I should avoid speculation.
52 Derrrin's case in the Part IVC appeal is to be heard by me in September this year and relates to profits made on the sale of certain shares. It contends that at all material times it was not an Australian tax resident. To the extent that the profits on the sales of shares were on revenue account it calls in aid of certain double taxation treaties (to which I return below). Its principal position, however, is that the profits were on capital account and that, as a non-resident, it is therefore entitled to the exemption from capital gains tax provided for by Division 855 of the ITAA 1997 (previously Division 136).
53 In either case, at the heart of both defences is the proposition that Derrin was not an Australian tax resident.
54 Derrin has filed a considerable amount of evidence in the Part IVC appeals to make good this proposition. The evidence suggests that Derrin is incorporated in the United Kingdom but that it is administered from Neuchatel in Switzerland. It has two directors, Mr Peter Borgas and his wife, Ms Winny Borgas. Evidence will be led from Mr Borgas that although born in Rockhampton in Queensland he has had a long career as an attorney in the United Kingdom, Belgium and Hong Kong. In 1985 he, Ms Borgas and their son migrated to Neuchatel, he having accepted an offer from several business colleagues to establish a corporate services provider known as the FM Trust SA ('FM Trust'). Its business was the conducting of the affairs of other companies or legal entities in accordance with the instructions of clients. In his affidavit he says 'the service that we offered was the set-up of companies and other entities, and the provision of individuals to act as directors of these companies, or as trustees. A company or trust was administered by FM Trust would be run by us in accordance with recommendations of the relevant external client…' Mr Borgas left this business in 1988 to set up his own firm providing corporate services called Anglore SARL ('Anglore'). Anglores's corporate services are similar to those of the FM Trust. Although others perform administrative work for Anglore and, in particular, Ms Borgas, Mr Borgas says that it is he alone who conducts the substantive business of Anglore. Anglore administers the affairs of about 140 separate entities. Usually Anglore, or Mr Borgas or a nominee entity, become the shareholder in the client company often enough under the terms of a management agreement. Usually both Mr Borgas and Ms Borgas become directors of the client entity.
55 Mr Borgas will give evidence that he also conducts business as an investor on his own account through a number of entities including Derrin and makes contributions to religious and charitable organisations. He regards these entities as his personal property. He is not a direct shareholder in Derrin. He is instead the sole shareholder in JA Investments Limited and MH Investments Limited both of which are incorporated in the Cayman Islands. His evidence is that he is the beneficial owner of those shares. Derrin itself is not owned directly by these two entities. Instead its shareholders are GuardHeath Securities Limited and Lord Hall Securities Limited but they have both executed documentation which suggest that they are bare nominees for J A Investments and M H Investments. GuardHeath Securities Limited and Lord Hall Securities Limited are service entities maintained by a London firm of accountants, Lubbock Fine.
56 Although the business of Derrin is Mr Borgas' personal business and separate from Anglore's business of administering companies for various clients, Mr Borgas conducts his personal business including that of Derrin from Anglore's office in Neuchatel.
57 Mr Borgas will say that he acquired an interest in investing in Australian shares through work he did for the FM Trust which brought him into contact with Elders Finance Limited and that he thereafter began investing in Australian shares in the early 1980s; also that Derrin takes long term positions in the Australian shares in which it invests. He will give evidence that he makes decisions on which shares on the ASX for Derrin to buy and on the basis of discussions with Australian advisors about the merits of the stocks in question.
58 He will say that he actually gives verbal instructions to his brokers on what to buy followed, often enough, by a written confirmation. If he places an order outside of business hours he might, so he says, just send an instructional fax. He is very clear that the decisions to invest made by Derrin are his, and his alone, and he denies that there was any arrangement with a third party about what to do (as there might be if Derrin were part of the business, for example, of Anglore).
59 His evidence will be that he dealt with only a small number of people in relation to the affairs of Derrin: some stockbrokers (Messrs Codd, Saba and Gibbs), an accountant at Lubbock Fine, an investor Mr Hasmukh Vara who was responsible for the mechanics of payment and receipt of proceeds on behalf of Derrin, an investment advisor in Malaysia, Mr Yunus, Mr Vanda Gould and Mr John Leaver.
60 Mr Borgas will also give evidence of his relationship with Mr Vanda Gould who he originally met through the business of the FM Trust in the 1980s. Mr Gould, along with Mr Leaver, were involved in the setting up of an Australian company called CVC Limited ('CVC') which was floated on the ASX in the 1980s. It is the shares in CVC, I interpolate, which are presently the subject of the Deputy Commissioner's attempts to levy execution against Derrin. The investment was very successful. Mr Borgas and Mr Gould thereafter have had a successful business relationship and Mr Borgas says that he has come to have a great deal of confidence in Mr Gould's business acumen. They also, apparently, share a common Christian faith.
61 Mr Gould became Mr Borgas' principle source of advice on his Australian investments which included advice on what Australian stocks to buy. That advice accounts for the majority of the transactions which are now impugned by the Deputy Commissioner according to Mr Borgas. There are a number of other aspects of the closeness of the relationship between Mr Borgas and Mr Gould to which he will attest to but I need not set them out. The gravamen of the evidence as a whole will be as to the closeness of the relationship, the frequency of their contact and also as to Mr Gould's role as a trusted advisor to Mr Borgas on his own investment decisions.
62 Evidence will be given by Mr Gould about his dealings with Mr Borgas and the affairs of Derrin. Mr Gould will say that his introduction to Mr Borgas arose through their contact with Lubbock Fine. He will testify that they are personal friends who speak frequently; that since the 1980s they have spoken by phone about business and personal matters at least once a fortnight; that their friendship is sufficiently close that they exchange gifts; and that Mr Gould and Mr Borgas usually catch up annually during Mr Gould's business trips to Europe.
63 Mr Gould gives Mr Borgas investment advice across a range of topics including stock selection and investment proposals available through CVC. Generally Mr Borgas is not looking for dividend yield but instead capital growth. A lot of the advice proffered to Mr Borgas by Mr Gould had its source with CVC and, in particular, with CVC investment advisors.
64 Mr Gould will give detailed evidence of the kind of advice he has proffered to Mr Gould. I will not set it all out. It suffices to say that it details a close relationship between the two gentlemen but one in which it is clearly Mr Borgas who is making the decisions and Mr Gould who is proffering the advice.
65 Evidence will also be called from Mr Leaver. Mr Leaver was instrumental in setting up CVC with Mr Gould. Both he and Mr Gould are directors of CVC. He will say that he speaks to Mr Gould everyday at CVC's offices which are on the same floor as Mr Gould's firm of accountants Gould Ralph (both in the Suncorp Tower in Sydney). He knows Mr Borgas and has spoken with him on a semi-infrequent basis. He will say that he proposed to Mr Gould that Derrin might be involved in a joint venture with CVC and that Mr Gould said that he would speak to Mr Borgas about it. The proposal involved Derrin investing in CVC (and another entity called Sunland), Mr Leaver guaranteeing the success of the investment backed by a personal guarantee and Derrin agreeing, in return, to pay Mr Leaver 50% of any of the profit it made. Derrin proceeded with the investment. Under the arrangement Derrin was entitled to invoice Mr Leaver for commission and in due course it did so.
66 Mr Vara, the accountant at Lubbock Fine, will be called about his dealings with Mr Borgas. He will say that he spoke with Mr Borgas three or four times per week and sometimes daily to receive instructions from him to perform transactions on behalf of Derrin. Mr Shah, from the same firm, will be called to attest to the long relationship between Mr Borgas and the firm. Although he did speak with Mr Borgas on some occasions he does not recall the terms of any of those discussions.
67 A Mr Yunus is also to be called. He is the group managing director of the Normandy Malaysia Group of companies ('Normandy Malaysia'). Normandy Malaysia is an investment management and corporate advisory services provider. It operates from Malaysia and, Mr Yunus will say, manages Derrin's investments in the Asia Pacific Region. He deposes to dealings with Mr Borgas about investments for Derrin in which has proffered advice to Mr Borgas and then received immediate instructions in relation to that advice. He will say that he has also had dealings with Mr Gould in relation to the affairs of Derrin and that Mr Borgas has made it clear to him that Mr Gould has a particular responsibility for Derrin and its investments in the Asia Pacific region. He will also say that he acts on the instructions of Mr Borgas and that that his dealings with Mr Gould are consistent with the latter having a subordinate role. He has proceeded on the assumption that Mr Borgas is the person who speaks for Derrin.
68 A broker, Mr Codd, is also to be called and he will say that he was introduced to Mr Borgas by Mr Gould around 2001. Mr Borgas would ring to discuss investments of, inter alia, Derrin. He will say that on most occasions Mr Borgas would seek advice from him and ask questions. He would often then place an order on the spot in light of the advice. Sometimes, but not that often, he would receive only written instructions.
69 There will be tendered business correspondence between Mr Borgas, Mr Codd, other brokers and Normandy Malaysia which will be directed presumably to the end of showing that the source of the instructions for those firms was Mr Borgas.
70 Evidence will also be called from a Mr Watson. He gives evidence of Mr Borgas' dealing in relation to another entity, Chemical Trustee. He does not depose to any dealings with Derrin. On the assumption that the debate which concerns Chemical Trustee will be largely the same as that which concerns Derrin, the evidence is arguably relevant because it goes to the nature of Mr Borgas' operations in Neuchatel. In substance, Mr Watson will give evidence that following an introduction by Mr Gould, Mr Borgas provided funds to a charity conducted by Mr Watson.
71 Expert evidence will be adduced from Dr Simonek of Zurich on the content of Swiss domestic tax law and on the operation of two double taxation treaties being the 1977 treaty between Switzerland and the United Kingdom (Convention between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation with respect to Taxes on Income, signed 8 December 1977 (entered into force 8 December 1977)) and the corresponding treaty between Switzerland and Australia (Agreement between Australia and Switzerland for the Avoidance of Double Taxation with respect to Taxes on Income, and Protocol, signed 28 February 1980, [1981] ATS 5 (entered into force 13 February 1981). On the assumption that it was Mr Borgas who was making all the decisions for Derrin she will say Derrin is a Swiss resident for the purposes of Swiss tax law and also under the two double taxation treaties.
72 Finally, witnesses will be called to prove that the profits made by Derrin on its share trading activities on the ASX were on capital rather than revenue account. These witnesses will be Dr Lepone, Mr Bryant, Mr Codd and another broker Mr Gibb.
73 I turn then to the material placed before me by the Deputy Commissioner. Ms Whan, one of the solicitors for the Deputy Commissioner, gave evidence as to the manner in which the Deputy Commissioner will approach the trial. The Deputy Commissioner proposes to contend that Mr Borgas has only ever acted in a nominee capacity on the instructions of Mr Gould and Mr Leaver. He will say that at all times Mr Gould and Mr Leaver did so through a complex web of structures which were designed deliberately to conceal the fact of their control. The Deputy Commissioner's position has been arrived at, according to Ms Whan: by a detailed analysis of the corporate structures, directorships and arrangements between Derrin and companies associated with Mr Gould and Mr Leaver; by a detailed analysis of flows of funds between Derrin and companies associated with, or in someway connected to, Mr Gould and Mr Leaver; and with eleven folders of documents obtained by the Deputy Commissioner relevant to the control question insofar as Derrin and Mr Borgas are concerned (although I was spared the eleven folders on the occasion of the present application). There will also be called a Mr John Temple-Cole who will give evidence about the structures involving Mr Gould and Mr Leaver and also the flow of funds. Mr Temple-Cole's report was not before me.
74 Insofar as the lay witnesses foreshadowed by Derrin to be called were concerned, Ms Whan said that the credibility of each would be directly challenged but she said it was not possible at this stage for the Deputy Commissioner to foreshadow how this would be done until the oral evidence was itself completed.
75 In response to the report of Dr Simonek, the Deputy Commissioner will call Professor Dr Oberson of Geneva. He says a number of things about the principle of effective management for the purposes of Swiss law and the double taxation treaties (to which I return below) and largely agrees with Dr Simonek's description of them.
76 Thus is the material which is proposed to be called at the trial (put in reasonably short compass).
77 I turn then to the relevant principles starting with Swiss law. Two concepts are in play: residency under Swiss domestic tax law and residency under the two tax treaties (both of which are modelled largely on the OECD double taxation law). So far as Swiss law is concerned, Dr Simonek says (and Professor Dr Oberson agrees) that an entity will be resident for Swiss tax purposes if it has its place of effective management in Switzerland: Articles 50 and 52(1) of the Federal Income Tax Act (Switzerland) of 14 December 1990, entered into force on 1 January 1990 ('FITA'); Article 20(1) Federal Taxation Harmonisation Act (Switzerland) of 14 December 1990, entered into force on 1 January 1993 ('FTHA'). Both agree that at the federal level in Switzerland (which is the relevant level) the place of effective management 'is considered to be located where the affairs of the company are carried on and where important company decisions are taken'; they also agree that there is a different test at the inter-cantonal level, however, I did not understand that the inter-cantonal approach to be relevant to Article 50 FITA or Article 20 FTHA (and certainly this was not suggested to me).
78 So far as the federal test is concerned, both agree that the location where a company's supreme bodies have their activities is not a determining factor : Dr Simonek says that 'it is not of relevance per se where the meetings of board members or the meetings of the general assembly take place'. They agree that 'the concrete circumstances of the case must be taken into consideration'.
79 Insofar as the operation of the two treaties are concerned both are, again, in agreement. A company will be entitled to the benefit of the tax treaties if it is liable to Swiss tax and this will be so if its place of effective management is, as a matter of Swiss law, in Switzerland. The application of those treaties therefore turns on the outcome of the operation of the domestic law which I have set out above.
80 In Australia, the relevant principles appear in Esquire Nominees Limited as Trustee of Manolas Trust v Federal Commissioner of Taxation (Cth) (1973) 129 CLR 177. For the purposes of income tax, a company is resident 'where its real business is carried on, and its real business is carried on where central management and control actually abides' (at 189). Importantly, 'the question where a company is resident is one of fact and degree' (at 190).
81 Derrin submits that the merits of its Part IVC appeal are overwhelming both under Australian and under Swiss law. It points to the facts in Esquire Nominees and the statement in the reasons of Gibbs J (at 190-191):
But if it be accepted that Messrs Wilson, Bishop, Bowers and Craig told it to do in the administration of the various trusts, it does not follow that the control and management of the appellant lay with Messrs Wilson, Bishop, Bowers and Craig. That firm had no power to control the directors of the appellant in the exercise of their powers or the A class shareholders in the exercise of their voting rights. Although it is doubtless true that steps could have been taken to remove the appellant form its position as trustee of one or more of the trust estates, Messrs Wilson, Bishop, Bowers and Craig could not control the appellant in the conduct of its business of a trustee company. The firm had power to exert influence, and perhaps strong influence, on the appellant, but that is all. The directors in fact complied with the wishes of Messrs Wilson, Bishop, Bowers and Craig because they accepted that it was in the interests of the beneficiaries, having regard to the tax position, that they should give effect to the scheme. If, on the other hand, Messrs Wilson, Bishop, Bowers and Craig had instructed the Directors to do something which they considered improper or inadvisable, I do not believe that they would have acted on the instructions. It was apparent that it was intended that the appellant should carry on its business of trustee company on Norfolk Island. It was in my opinion managed and controlled there, nonetheless because the control was exercised in a manner which accorded with the issues of interest in Australia. The appellant was, in my opinion, a resident of Norfolk Island.
82 Derrin says that even assuming, as the Deputy Commissioner contends, that Mr Borgas acted at the direction of Mr Gould and/or Mr Leaver, it would still be bound to prevail on this issue for the situation would then be the same as that rejected by Gibbs J in Esquire Nominees as being sufficient to establish non-residency.
83 I do not accept this submission. As Gibbs J said, it is a question of fact and degree in each case. If the Deputy Commissioner establishes that Mr Borgas was, as it was put it in oral submissions 'a puppet' or, at another time during the hearing, that the whole structure was a 'façade' then those questions of fact and degree would, in my opinion, arise. Notably, in Esquire Nominees, it was not suggested that the structure was a façade or that the trustee company was a mere puppet. Gibbs J accepted that the trustee company acted in the way that it did because it believed it to be in the interests of the beneficiaries and he also accepted that had the directors of the trustee company been directed to do something that they considered improper they would have declined to have done so. I cannot be clear that if the Deputy Commissioner establishes that the entire arrangement is a façade that that conclusion will necessarily be the same in this case.
84 No separate submissions were put to me that suggested a different outcome if one applied Swiss law to the question. In any event, the references in Dr Simonek's report to the need to look at the concrete circumstances of the case rather tell in the same direction.
85 Derrin submitted that the Deputy Commissioner had not indicated on what basis the attack on the credit of its various witnesses was going to be launched and that should I proceed on the basis that nothing has been put before me to suggest that Derrin would lose the appeal. Whilst I accept that it is not enough for the Deputy Commissioner in a case such as the present merely to say that it is going to traduce the credit of a taxpayer's witnesses in a Part IVC appeal, I do not consider that that is what has occurred in this case. The Deputy Commissioner has explained, through Ms Whan, the basis of his suspicions and has obtained the report of Mr Temple-Cole. Although that report was not before me, its existence is sufficient to indicate that the Deputy Commissioner's position is not frivolous. It is true that I was not taken to the eleven folders of material upon which the Deputy Commissioner proposes to launch his attack, but I do not think that a stay application would provide a convenient forum for that kind of submission. This is particularly so where that would be tantamount to making the Deputy Commissioner run the details of his credit attack on these witnesses in advance of the trial.
86 I conclude therefore that the Deputy Commissioner's position is substantive and that this is not a case of bald assertion on his part.
87 Once that position is reached, I do not see that I can assess the merits of the case in any meaningful way. I simply do not know how this trial will play out. I accept, as the Deputy Commissioner quite properly accepted, that if I were ultimately to accept the credit of all of Derrin's witnesses, then it would succeed. Any attempt by me, however, at this stage to work out whether that will be so would be purely speculative.
88 Derrin's submissions were not only based on the strength of its case, however. It also submitted that it would suffer prejudice in the event that the CVC shares were now sold because CVC on the ASX is an illiquid stock and it would be difficult thereafter to reassemble the parcel of shares if the Part IVC appeal were successful. It did not submit, as it did when I first heard this application last year, that it would suffer financial detriment (the stock market having recovered significantly since the hearing of the first stay application). I do not think the nominated prejudice is a great one, but even assuming it was then there is no evidence before me that Derrin cannot pay the sum now demanded by the Deputy Commissioner. As the Deputy Commissioner pointed out, Derrin can avoid the prejudice it now points to by the simple expedient of paying the amount of the judgment sum. I raised this matter with counsel for Derrin but no submission was made in response to explain why the Deputy Commissioner's argument was not sound. In those circumstances I find no substantive prejudice if the judgment is enforced.
89 I accept, as counsel for Derrin correctly submitted, that the existence of the freezing orders is a relevant matter. In a sense, the position of the Deputy Commissioner is secured but being secured is not the same as being paid and as the events of last year show, the value of the securities held by Derrin is a fluctuating one given the movements of the stock market. This matter was also said to be relevant because of the Commissioner's written policy, Practice Statement Law Administration 2011/6 ('PSLA 2011/6') in which it was submitted that the Deputy Commissioner accepted that where a debt is disputed then the only reason to seek enforcement is if there is some prejudice to the economic position of the revenue. I was not taken to the terms of PSLA 2011/6 to make good this point, nor was I in fact provided with a copy of it. Having, perhaps impermissibly, located a copy of it I cannot find the passage to which reference is made in the submissions. It appears only to deal with the position of disputed debts in relation to taxation appeals in a section dealing with garnishee orders.
90 Finally, I do not regard the fact that the judgments in question are summary judgments as having any great relevance. Summary judgment is readily available to the Deputy Commissioner because of the debt which is deemed to exist. A summary judgment is a judgment nonetheless. If there were on foot an application to set aside the summary judgment matters might well be different, but I did not apprehend that to be the case.
91 Should then a stay be granted? I think not. The power to grant the stay is to be exercised sparingly giving great weight to the legislative policy embodied in ss 14ZZM and 14ZZR of the TAA 1953 and recognising, at the same time, the asperity with which those provisions can operate. I do not think there is a substantive prejudice to Derrin if judgment is now enforced and I am unable to do anymore than speculate about the merits of the Part IVC appeal. Despite closely considering the material upon which Derrin proposes to rely, I have no present inkling in either direction as to how this litigation is eventually likely to unfold. Although accepting the fact that the Deputy Commissioner is secured by the existence of the freezing orders I do not think that that leads, given the statutory policy inherent in the provisions, to a different outcome. In all of those circumstances, the stay will be refused with costs.
92 In order to allow for the orderly conduct of the proceedings I will stay the judgment given by Kenny J until midnight on 31 May 2013. I will indicate that I would not be disposed to grant leave to appeal were it to be sought.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.