Deputy Commissioner of Taxation v Huang

Principles 17 In Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 95 ALJR 634 at [21]-[22] Gordon J (with whom Kiefel CJ, Gageler and Gleeson JJ agreed) identified that (citations excluded): The Federal Court may make a freezing order or an ancillary order, or both, against a judgment debtor or a prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or a prospective judgment will be wholly or partly unsatisfied because the judgment debtor or the prospective judgment debtor might abscond, or because the assets of the judgment debtor or the prospective judgment debtor might be removed from Australia or from a place inside or outside Australia, or disposed of, dealt with or diminished in value. A freezing order, and an asset disclosure order, have the same fundamental purpose: "to prevent the abuse or frustration of [a court's] process in relation to matters coming within its jurisdiction". Freezing orders may be made, and may continue to operate, after final judgment to protect the efficacy of the execution. And for freezing orders to be effective there needs to be timely disclosure of assets. The utility in both orders lies in ensuring that the court's processes for enforcement of a judgment are not frustrated by assets being spirited away between the time of commencement of the proceedings and eventual enforcement. 18 In the present case, the freezing order was made because of the real risk of Mr Huang dissipating his assets in Australia: Deputy Commissioner of Taxation v Huang [2019] FCA 1728 and Deputy Commissioner of Taxation v Huang [2019] FCA 1537. The freezing order has continued in circumstances where the judgment debt remains unpaid and Mr Huang, no doubt for that reason, has not applied to vary or vacate the freezing order. 19 I agree with the submissions for the Deputy Commissioner that it is not necessary that a material change in circumstances be proved to permit a variation of the freezing order. Rather, the question in the circumstances of the present case, where the judgment debt exists and remains unpaid, is whether it is in the interests of justice for the freezing order to be varied. I do not accept the submissions for Mr Huang to the contrary. 20 As McLelland J explained in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46: The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised … In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application…. 21 The freezing order ceased to be an order of that kind on entry of the judgment debt. On entry of the judgment debt, the freezing order was no longer contemplated to operate until the final disposition of the proceeding. Its purpose became to protect the efficacy of the future execution of the judgment debt. If the interests of justice require the freezing order to be varied to fulfil that purpose, the Court has a discretion to vary the freezing order. 22 This is reflected in Break Fast Investments Pty Ltd v Gravity Ventures Pty Ltd [2013] VSC 89 at [43] where Vickery J said: As to variations, a freezing order may be varied, on the application of the defendant, or indeed any other person who is affected by the making of the order. However, any such variation that is made must not, in the ordinary course, conflict with the purpose for which the order was made in the first place. Secondly, a variation must also accord with the interests of justice. In this respect, reference is made to MG Corrosion Consultants v Gilmour [[2012] FCA 568 at [14] where Barker J made the following observations: So far as the court's power to vary a freezing order is concerned, there can be little doubt about it. Similarly, it is also clear that having made a freezing order a court should not be quick to reverse it save for good reason and the dictates of justice. … Ultimately, the grant or discharge or variation of an interlocutory injunction, including a freezing order will be dictated by what justice demands in the particular circumstances of the case. 23 Similarly, in Linke v TT Builders Pty Ltd (No 2) [2015] FCA 704 White J said at [11]: It is in the public interest that the Court's orders are respected and obeyed. Accordingly, it is appropriate for the Court to assist judgment creditors to enforce their entitlements. Respect for the law will be undermined if judgment debtors can readily frustrate enforcements of judgments against them. Spender J referred to these considerations in Guthrie v Robertson (1987) 13 FCR 336 at 337-8 when he said: It is obviously crucial to the efficiency of the Court's process that its orders be obeyed, and the Court should be astute to lend whatever assistance it can to enable its orders to be enforced. Section 53 of the Federal Court Act, s 8 of the Enforcement of Judgments Act and r 41.10 reflect this public interest. 24 In Michael Wilson & "Partners" Ltd v Emmott [2019] EWCA 219 (Civ); [2019] 4 WLR 53 Gross LJ (with whom Peter Jackson and Rose LJJ agreed) discussed the so-called Angel Bell exception (Iraqi Ministry of Defence v Arcepey Shipping Co SA (No 2) (The Angel Bell) [1981] QB 65) to a freezing order permitting the defendant to spend money on living expenses, in the ordinary course of business and on legal costs associated with defending the action. At [55]-[57] Gross LJ said: Thirdly, in the light of Tomlinson LJ's further reflections in Nomihold [Nomihold Securities Inc v Mobile Telesystems Finance SA [2011] EWCA Civ 1040; [2012] Bus LR 1166], it cannot be said that, without more, the (Angel Bell) exception would be inappropriate in a post-judgment Mareva. In this regard, the observations of Colman J in Soinco [Soinco SACI v Novokuznetsk Aluminium Plant [1998] QB 406] and Tomlinson J in Masri [Masri v Consolidated Contractors International (UK) Ltd [2008] EWHC 2492 (Comm)], went too far. Fourthly, it can be said, however, on the basis of Nomihold, at [33], that "it will sometimes and perhaps usually be inappropriate" to include the exception in a post-judgment Mareva injunction. Given the policy of the law strongly in favour of the enforcement of judgments, as already remarked, it would indeed be curious were the position otherwise - leaving the judgment debtor free to carry on business and ignore the outstanding judgment. The context is that a risk of dissipation must already have been demonstrated, as otherwise no Mareva injunction (with or without the exception) would have been granted at all. Accordingly, over the period between judgment and execution taking effect, a Mareva, without the exception, serves to hold the ring: Sir Jeremy Cooke, judgment, at [27]. Fifthly, I would prefer not to characterise refusal of the exception in a post-judgment Mareva as either a "starting point" or a presumption. For that matter, I would be equally reluctant to pigeon-hole refusal of the exception as a remedy of last resort; there is no warrant for so confining such a decision, save that the more draconian the relief, the greater the need for its justification. Instead and while it strikes me as an obvious matter to consider when granting a post-judgment Mareva, the appropriateness or otherwise of the exception in such a Mareva should be treated as a question turning on all the facts in the individual case. In addressing this question, Tomlinson LJ's test in Nomihold, at [33] ("it will sometimes and perhaps usually be inappropriate" to include the exception in a post-judgment Mareva), furnishes helpful and appropriately nuanced general guidance. Thus analysed, the decision by a Judge to permit or refuse its inclusion is a discretionary decision reached on a fact specific basis, with which this Court will be slow to interfere. Furthermore, while a Judge, when considering refusal of the exception, would no doubt have regard to the ambit of the Mareva sought, the assets thus frozen and the impact on the judgment debtor's business … 25 I agree that, once a judgment debt is entered, the continuation or inclusion of any exception from the freezing order for the payment of living expenses, the ordinary costs of business, and/or legal costs for any matter involves a discretionary decision to be exercised in all of the circumstances of the case having regard to the overall interests of justice. It should not be presumed that the exception will continue (if a freezing order is continuing) or will be included (if a freezing order is to be made) once a judgment debt has been entered. This is different from a freezing order to protect the potential fruits of a cause of action in which it is ordinarily presumed that the exception should be included if the cause of action involves an in personam and not a proprietary claim over the assets in question. This is because, in those circumstances, the cause of action has not yet been proved and may well fail. Once a judgment debt has been entered, however, the cause of action has been proved and the Court should facilitate enforcement of the Court's orders. 26 The observations in Emmott are also relevant because they make the obvious point that the freezing order, if already made, was made because a risk of dissipation of the assets was proved. The public interest in ensuring that the orders of a court can be enforced, once judgment has been entered, is not confined to preventing the illegitimate dissipation of assets. The very reason that there should be no presumption in favour of the continuation or inclusion of the exception in a freezing order after judgment had been entered is that it is in the public interest for orders of a court to be able to be effectively enforced; as such, the relevant issue is the risk of dissipation of the assets undermining the efficacy of enforcement of the orders, and is not confined to the illegitimacy of that risk. Obviously, if the risk of dissipation is illegitimate (ie, to avoid future enforcement) then that would be a significant discretionary factor weighing against continuation or exclusion of the exception. But the fact that the risk of dissipation is not illegitimate, does not mean that the exception must be continued or included. 27 Goumas v McIntosh [2002] NSWSC 713 at [27] is not authority to the contrary, as contended by the first respondent. Justice Barrett there said: It has been said repeatedly by the courts that a Mareva order must not operate as a form of de facto security for the applicants' claims and that the sole purpose is to prevent illegitimate dissipation of assets that will otherwise be available to meet any judgment. I say "illegitimate" dissipation to emphasise that to deny access to funds needed for ordinary living purposes or to fund the conduct of the very litigation the integrity of which the order is designed to protect goes beyond the proper protective province of the jurisdiction and causes the order sought to be a means of exerting pressure foreign to the underlying purpose. 28 This is all orthodox. It applies to the making of a freezing order to preserve the potential fruits of a cause of action. As explained, once a judgment has been entered on the cause of action, the purpose of the freezing order is different. 29 Similarly, National Australia Bank Limited v Human Group Pty Ltd (No 2) [2020] NSWSC 1900 concerned an application made to vary a freezing order before judgment in the context of a proprietary claim over the assets. In those circumstances Henry J said at [104]-[105]: To engage the Court's discretion to vary the Freezing Orders, NAB must establish that there has been a material change of circumstances since the original application for the orders was heard or the discovery of new material that was not reasonably available at the time they were made: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46; Short v Crawley (No 42) [2009] NSWSC 1110 at [75]. As NAB seeks to vary the Freezing Orders so as to prevent Ms Rosamond and Human Group from having recourse to ACN's assets for the purposes of paying their living, legal and business expenses, it must also establish that it has an [sic] prima facie or arguable case for a proprietary claim to ACN's assets… 30 The observation of McKerracher J in Deputy Commissioner of Taxation v Bollands [2012] FCA 1050; (2012) 90 ATR 679 at [23] that it "is difficult to discern any point of principle which would require that a person be placed in a more prejudicial position, concerning access to resources to meet legal fees simply by reason of the need to attempt to call on a loan, rather than to access frozen funds" was made in the context of an application to vary a freezing order where consent orders had been entered but the underlying factual issues and operation of those orders were still to be determined. Consistently with the discussion above, at [22] McKerracher J said: I would regard the general default position as being that a freezing order should expressly make provision for the paying of reasonable legal expenses. Clearly the rationale behind this is that any person the subject of a freezing order should not be deprived of reasonable legal advice to contest the merits of the substantive claim against which the order is based. The same logic follows in respect of a Mareva order, as noted by Barrett J in Goumas v McIntosh [2002] NSWSC 713 (at [27])… 31 The focus of McKerracher J in Bollands was the need for a person to be able to obtain legal advice to "contest the merits of the substantive claim against which the order is based". In the present case, by distinction, the claim has been established by entry of the judgment debt. The fact that the review proceedings in the AAT remain on foot does not change that fact. 32 I also consider that the submissions for Mr Huang mischaracterise the nature of the discretion to be exercised in another respect. It may be accepted that the purpose of a freezing order continuing, or being made after judgment is entered, is to protect the efficacy of the execution of the order. It may also be accepted that the concept of the "efficacy" of execution of the order is different from the "convenience" of the execution. But this does not mean that considerations such as the likely capacity to be able to execute the order, and the cost and time of doing so, are matters of mere convenience. They are matters relevant to the efficacy of future execution of the order. 33 Further, the party seeking to exclude the exception from a freezing order for the purpose of protecting the efficacy of future execution of the order does not need to prove that the variation is necessary or essential to enable any possibility of future execution. It is sufficient if, in all of the circumstances, the interests of justice facilitating the future efficacious execution of the order are served or supported by the variation and no countervailing consideration outweighs that purpose. For this reason it is not material that it might be possible that the Deputy Commissioner might be able to execute judgment against Mr Huang's overseas assets by one or more methods. 34 Contrary to the submissions for Mr Huang, it is clear that the evidence enables an inference that execution against the Australian assets, if they are available for that purpose, will be more efficacious than any potential to execute against the overseas assets. There is also no basis for the submission for Mr Huang that variation of the order would have the effect of being a punitive sanction against Mr Huang for not paying the amount owed under the judgment debt. 35 I also do not accept that the effect of the variation of the freezing order would be to provide the Deputy Commissioner with security of the kind referred to in Goumas at [27]. Justice Barrett was there referring to de facto security for a claim. That is not the present case in which the Deputy Commissioner's claim has been proved. In any event, preventing Mr Huang from using the Chatswood properties (perhaps worth $7,000,000) does not provide any form of effective security for the judgment debt of $140,607,780.88.

The interests of justice in the circumstances of this case 36 The Deputy Commissioner has not moved for execution of the judgment debt. Contrary to the submissions for Mr Huang, it is not possible to infer that the Deputy Commissioner has or might have not moved to execution for some improper purpose of sterilising Mr Huang's assets for an indefinite period. This inference cannot be drawn because: (a) there is no evidence at all to support it, and (b) it is perfectly proper for the Deputy Commissioner not to move to execute the judgment debt in circumstances where Mr Huang had made objections to the underlying tax debts and (as he did) subsequently applied to the AAT for review of the Commissioner's objection decisions. 37 In this latter regard, the Deputy Commissioner referred to the provisions of the Commissioner's published Practice Statement Law Administration PS LA 2011/4 and PS LA 2011/6, which identify the considerations relevant to the recovery of disputed and other debts. It is not necessary to refer to the provisions of these practice statements given that the propriety of the position taken by the Deputy Commissioner about debt recovery in the present case is clear. The circumstances do not involve a freezing order being left in place "until the crack of doom", which, if it were so, might give rise to a possible inference of an illegitimate purpose in maintaining the order: Masri v Consolidated Contractors International (UK) Ltd [2008] EWHC 2492 (Comm) at [34]. 38 I am satisfied that the interests of justice weigh heavily in favour of making the variation to the freezing order. The unchallenged circumstances are that: (1) the judgment debt for the sum of $140,607,780.88 entered on 19 December 2019 remains unsatisfied; (2) it is common ground and not confidential that the asset disclosure affidavit of Mr Huang affirmed 16 April 2019 (otherwise subject to a suppression order) discloses that his only remaining assets in Australia are two properties in Chatswood estimated to be worth about $7,000,000; (3) it is common ground and not confidential that the asset disclosure affidavit of Mr Huang (otherwise subject to a suppression order) discloses that Mr Huang has very substantial assets overseas; (4) the evidence is that before the freezing order was made, Mr Huang managed to transfer substantial assets outside of Australia: Deputy Commissioner of Taxation v Huang [2019] FCA 1537 at [24]; (5) Mr Huang is not resident in Australia; (6) Mr Huang has very substantial assets outside of Australia, more than sufficient to pay his legal costs in the AAT proceedings; (7) the AAT proceedings raise potentially complex and time consuming issues, enabling it to be inferred that the legal fees for which Mr Huang will become liable will be substantial; (8) Mr Huang has already paid substantial legal fees after 1 November 2019 without recourse to the Chatswood properties; (9) while execution of the judgment debt against Mr Huang's overseas assets may not be impossible, it is far more likely that the Deputy Commissioner will be able to satisfy at least some part of the judgment debt against the Chatswood properties; (10) it is clear that if Mr Huang uses the Chatswood properties to fund his legal expenses in the AAT proceedings, the only assets in Australia available for execution of the judgment debt will be substantially eroded; and (11) there is no evidence of any prejudice to Mr Huang or any other party by reason of the variation of the freezing order to exclude his Australian assets from the exception in paragraph 10 of that order for legal expenses. 39 As noted, I am also satisfied that there has been a material change of circumstances since the making of the freezing order. The primary material change of circumstances is the entry of the judgment debt. That would be sufficient to enliven a power to vary the freezing order dependent on a material change of circumstances. As discussed, however, I do not accept that that criterion is applicable. There are also other changed circumstances which would support the exercise of the power including that: (a) the Commissioner rejected Mr Huang's objections against his tax assessments, (b) Mr Huang sought review of the objection decisions in the AAT and has now indicated he wishes to use his Australian assets to fund his legal costs of the AAT proceedings which, if permitted, will erode the assets likely to be available for execution of the judgment debt, and (c) Mr Huang has never paid any part of the tax debt owing, and the Deputy Commissioner's attempts by 39 garnishee orders to recover part of that debt have proved fruitless. 40 In conclusion, it is apparent that the purpose of the continuation of the freezing order to protect the efficacy of execution of the order for the judgment debt will be substantially undermined if the order is not varied. It will be undermined because by far the most likely available source of assets for execution, the presently unencumbered value of the Chatswood properties, will be substantially diminished by Mr Huang on paying legal costs he incurs in the AAT proceedings. 41 The variation of the freezing order was made for these reasons. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.