Deputy Commissioner of Taxation v Peever - [2024] FCA 1470 - FCA 2024 case summary — Zoe

CTHFCA

Deputy Commissioner of Taxation v Peever

[2024] FCA 1470

Federal Court of Australia|2024-12-06|Before: Rangiah J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2024-12-06

Before

Rangiah J

Source

Original judgment source is linked above.

Judgment (72 paragraphs)

[1]

THE COURT ORDERS THAT: Freezing and ancillary orders

Upon the Applicant giving the undertakings set out in Schedule A to each of the following annexures, freezing and ancillary orders be made against: (a) the First Respondent in the terms specified in Annexure A to these orders; (b) the Second Respondent in the terms specified in Annexure B to these orders; (c) the Third Respondent in the terms specified in Annexure C to these orders; (d) the Fourth Respondent in the terms specified in Annexure D to these orders; (e) the Fifth Respondent in the terms specified in Annexure E to these orders; and (f) the Sixth to Thirty-Fifth Respondent in the terms specified in Annexure F to these orders.
The proceeding be listed for further hearing at 10.15am (AEST) on 20 December 2024 (Return Date). Service
Service on the Respondents of the Interlocutory Application for interim relief be dispensed with.
Service of the Documents be effected on the First and Second Respondents by emailing the Documents to: (a) the First Respondent at Kirsten.george27@gmail.com; and (b) the Second Respondent at tom.a.peever@gmail.com and tom.peever@elutionmetals.com.au.
In addition, although service under Order 4 shall constitute effective service of the Documents, the Applicant must make all reasonable attempts to give the First and Second Respondents the Documents in person as soon as reasonably practical.
In this order, "Documents" means: (a) the Originating Application dated 5 December 2024; (b) the Interlocutory Application dated 5 December 2024; (c) the affidavit of Drew Hodgetts affirmed 29 November 2024 and annexure DH-1, which together may be provided by copy on a USB drive or making it available for download by web link; (d) the affidavit of Drew Hodgetts affirmed 5 December 2024 and annexure DH-2, which together may be provided by copy on a USB drive or making it available for download by web link; (e) the Applicant's outline of submissions in support of the Interlocutory Application; (f) a transcript of the ex parte hearing, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and (g) this Order.

[4]

FREEZING OF ASSETS 6. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (Australian assets) up to the unencumbered value of AUD $16,974,290.80 (the Relevant Amount). (b) If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount. (c) If the unencumbered value of your Australian assets is less than the Relevant Amount, and you have assets outside Australia (ex-Australian assets): (i) You must not dispose of, deal with or diminish the value of any of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the Relevant Amount; and (ii) You may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the Relevant Amount. 7. For the purposes of this order, your assets include: (i) all your assets, whether or not they are in your name and whether they are owned solely or co-owned; (ii) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (iii) the following assets in particular: (A) all shares you own in all Australian registered companies and all dividends received in relation to these shares; (B) the property known as Apartment 601 'Elysian', 185 Old Burleigh Road, Broadbeach, Queensland 4218, being Lot 601 on Survey Plan 296035 (Title Reference 51224980) or, if it has been sold, the net proceeds of the sale; (C) the property known as 82 Huntingdale Street, Pullenvale, Queensland 4069, being Lot 3 on Registered Plan 226149 (Title Reference 17353100) or, if it has been sold, the net proceeds of the sale; (D) the property known as 254 Moons Lane, Brookfield, Queensland 4069, being Lot 14 on Survey Plan 154425 (Title Reference 50435340) or, if it has been sold, the net proceeds of the sale; (E) the property known as Apartment 3302, 272 Hedges Avenue, Mermaid Beach, Queensland 4218, being Lot 3302 on Survey Plan 288108 (Title Reference 51286162) or, if it has been sold, the net proceeds of the sale; (F) the 2021 Mercedes Benz GLE53 motor vehicle with Vehicle Identification Number (VIN) W1N1671612A469144 or, if it has been sold, the net proceeds of the sale; (G) all rental income received in relation to any of the real properties identified in paragraphs 7(iii)(B) to (E) (the Properties); (H) the CBA bank accounts with the following account numbers: (i) 46666998 (in the name of Kirsten Peever); (ii) 47617645 (in the name of Kirsten Peever); (iii) 45269050 (in the name of Kirsten Peever); (iv) 49033432 (in the name of Kirsten Peever); (v) 29900840 (in the name of Kirsten Peever); (i) 38334854 (in the name of Thomas and Kirsten Peever) (Joint CBA 4854 Account); (ii) 34156624 (in the name of Thomas and Kirsten Peever) (Joint CBA 6624 Account); and (I) CommSec share trading account number 4498525 (in the name of Kirsten Peever); the value of your assets is the value of the interest you have individually in your assets. 8. Within 2 business days of being served with this order you must email Kollosche Property Management (and/or any other party responsible for receiving income for the Properties) (Property Manager) and: (a) inform them that: (i) they are required, within 2 business days of your email being sent, to take all reasonable steps to ensure that any and all funds received in relation to the Properties will be deposited into the Nominated CBA Account (as defined in paragraph 12 below); (ii) this direction cannot be changed other than by Court order or the Commissioner's express written consent; (b) request that they respond within 2 business days to acknowledge that they understand these instructions and have taken all necessary steps to give effect to these orders. You must provide to the applicant's lawyers a complete copy (in native format) of the email correspondence between you (or someone acting on your behalf) and the Property Manager (or someone acting on their behalf) relating to paragraph 8 of this order.

[6]

EXCEPTIONS TO THIS ORDER 11. This order does not prohibit you from: (a) subject to paragraph 12 below, paying up to $1,000 per week on your ordinary and reasonable living expenses (or $2,000 per week for both your and the first respondent's combined living expenses); (b) subject to paragraphs 12 below, paying up to $10,000 per calendar month on your and the second respondent's combined reasonable legal expenses; (c) paying amounts to the applicant in respect of your taxation liabilities; and (d) in relation to matters not falling within subparagraphs (a), (b) or (c) above, dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant at least two working days written notice of the particulars of the obligation. 12. The expenses paid pursuant to paragraphs 11(a) and 11(b) above must be paid from the Joint CBA 6624 Account (Nominated CBA Account) and: (a) within 7 days of the end of each calendar month commencing from the date of this order you must provide the applicant's lawyers with a bank statement or other genuine record of all transactions in chronological order in the calendar month just ended for the Nominated CBA Account; and (b) the record provided pursuant to 12(a) above must be in PDF format, or such other format as proposed by you and agreed to by the applicant's lawyers in writing. 13. You and the applicant may agree in writing that the exceptions in paragraph 11 are to be varied. In that case you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. 14. (a) This order will cease to have effect if you: (i) pay the sum of AUD $16,974,290.80 into Court; or (ii) pay that sum into a joint bank account in the name of your lawyer and the lawyer for the applicant as agreed in writing between them; or (iii) provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court. (b) Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency. (c) If this order ceases to have effect pursuant to paragraph 14(a) above, you must as soon as practicable file with the Court and serve on the applicant notice of that fact.

[8]

PERSONS OTHER THAN THE APPLICANT AND RESPONDENTS 16. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 17. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. 18. Persons outside Australia (a) Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia. (b) The terms of this order will affect the following persons outside Australia: (i) you and your directors, officers, employees and agents (except banks and financial institutions); (ii) any person (including a bank or financial institution) who: (A) is subject to the jurisdiction of this Court; and (B) has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and (C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and (iii) any other person (including a bank of financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person's assets. 19. Assets located outside Australia Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party's application, reasonable written notice of the making of the application is given to the applicant. 20. Notices under s 260-5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) Nothing in this order shall prevent any third party complying with the terms of a notice issued by the Commissioner of Taxation to the third party pursuant to section 260-5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) in respect of any money which the third party may owe or may later owe to you.

[9]

UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondents copies of: (c) this order; (d) the application for this order for hearing on the return date; (e) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (f) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (g) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondents which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondents' assets. (5) If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondents or the respondents' assets. SCHEDULE B AFFIDAVITS RELIED ON Name of deponent Date affidavit made (1) Drew Hodgetts 29 November 2024 (2) Drew Hodgetts 5 December 2024

[14]

[16]

EXCEPTIONS TO THIS ORDER 10. This order does not prohibit you from: (a) subject to paragraph 12 below, paying up to $1,000 per week on your ordinary and reasonable living expenses (or $2,000 per week for both your and the first respondent's combined living expenses); (b) subject to paragraph 12 below, paying up to $10,000 per calendar month on your and the first respondent's combined reasonable legal expenses; (c) paying amounts to the applicant in respect of your taxation liabilities; and (d) in relation to matters not falling within subparagraphs (a), (b) or (c) above, dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant at least two working days written notice of the particulars of the obligation. 11. The expenses paid pursuant to paragraphs 11(a) and 11(b) above must be paid from the Joint CBA 6624 Account (Nominated CBA Account) and: (a) within 7 days of the end of each calendar month commencing from the date of this order you must provide the applicant's lawyers with a bank statement or other genuine record of all transactions in chronological order in the calendar month just ended for the Nominated CBA Account; and (b) the record provided pursuant to 12(a) above must be in PDF format, or such other format as proposed by you and agreed to by the applicant's lawyers in writing. 12. You and the applicant may agree in writing that the exceptions in paragraph 11 are to be varied. In that case you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. 13. (a) This order will cease to have effect if you: (i) pay the sum of AUD $36,850,000 into Court; or (ii) pay that sum into a joint bank account in the name of your lawyer and the lawyer for the applicant as agreed in writing between them; or (iii) provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court. (b) Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency. (c) If this order ceases to have effect pursuant to paragraph 11(a) above, you must as soon as practicable file with the Court and serve on the applicant notice of that fact.

[18]

PERSONS OTHER THAN THE APPLICANT AND RESPONDENTS 15. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 16. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. 17. Persons outside Australia (a) Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia. (b) The terms of this order will affect the following persons outside Australia: (i) you and your directors, officers, employees and agents (except banks and financial institutions); (ii) any person (including a bank or financial institution) who: (A) is subject to the jurisdiction of this Court; and (B) has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and (C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and (iii) any other person (including a bank of financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person's assets. 18. Assets located outside Australia Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party's application, reasonable written notice of the making of the application is given to the applicant. 19. Notices under s 260-5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) Nothing in this order shall prevent any third party complying with the terms of a notice issued by the Commissioner of Taxation to the third party pursuant to section 260-5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) in respect of any money which the third party may owe or may later owe to you.

[19]

UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondents copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondents which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondents' assets. (5) If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondents or the respondents' assets. SCHEDULE B AFFIDAVITS RELIED ON Name of deponent Date affidavit made (1) Drew Hodgetts 29 November 2024 (2) Drew Hodgetts 5 December 2024

[30]

PERSONS OTHER THAN THE APPLICANT AND RESPONDENTS 14. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 15. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. 16. Persons outside Australia (a) Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia. (b) The terms of this order will affect the following persons outside Australia: (i) you and your directors, officers, employees and agents (except banks and financial institutions); (ii) any person (including a bank or financial institution) who: (A) is subject to the jurisdiction of this Court; and (B) has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and (C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and (iii) any other person (including a bank of financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person's assets. 17. Assets located outside Australia Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party's application, reasonable written notice of the making of the application is given to the applicant. 18. Notices under s 260-5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) Nothing in this order shall prevent any third party complying with the terms of a notice issued by the Commissioner of Taxation to the third party pursuant to section 260-5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) in respect of any money which the third party may owe or may later owe to you.

[31]

UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets. (5) If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets. SCHEDULE B AFFIDAVITS RELIED ON Name of deponent Date affidavit made (1) Drew Hodgetts 29 November 2024 (2) Drew Hodgetts 5 December 2024

[36]

[42]

[43]

UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets. (5) If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets. SCHEDULE B AFFIDAVITS RELIED ON Name of deponent Date affidavit made (1) Drew Hodgetts 29 November 2024 (2) Drew Hodgetts 5 December 2024

[53]

[54]

UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets. (5) If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets. SCHEDULE B AFFIDAVITS RELIED ON Name of deponent Date affidavit made (1) Drew Hodgetts 29 November 2024 (2) Drew Hodgetts 5 December 2024

[56]

Annexure F Freezing Order Federal Court of Australia District Registry: Queensland Registry Division: General No: QUD732/2024 DEPUTY COMMISSIONER OF TAXATION Applicant KIRSTEN LEIGH PEEVER and others named in the schedule Respondent PENAL NOTICE TO: • ELUTION METALS PTY LTD Sixth Respondent • ELUTION NORTH PTY LTD Seventh Respondent • ELUTION GROUP PTY LTD Eighth Respondent • ELUTION EAST PTY LTD Ninth Respondent • ELUTION FNQ PTY LTD Tenth Respondent • ELUTION INTERNATIONAL PTY LTD 11th Respondent • ELUTION WEST PTY LTD 12th Respondent • ELUTION SOUTH PTY LTD 13th Respondent • ELUTION CENTRAL WEST PTY LTD 14th Respondent • ELUTION SOUTH EAST PTY LTD 15th Respondent • ELUTION NORTH WEST PTY LTD 16th Respondent • ELUTION SOUTH WEST PTY LTD 17th Respondent • ARAUCANA INTERNATIONAL PTY LTD 18th Respondent • ARAUCANA SOUTH PTY LTD 19th Respondent • ARAUCANA WEST PTY LTD 20th Respondent • ARAUCANA EAST PTY LTD 21st Respondent • ARAUCANA NORTH PTY LTD 22nd Respondent • MOUNT HOOD NORTH PTY LTD 23rd Respondent • MOUNT HOOD SOUTH PTY LTD 24th Respondent • MOUNT HOOD EAST PTY LTD 25th Respondent • MOUNT HOOD WEST PTY LTD 26th Respondent • MOUNT HOOD INTERNATIONAL PTY LTD 27th Respondent • MALWORTH METALS PTY LTD 28th Respondent • MALWORTH WEST PTY LTD 29th Respondent • MALWORTH INTERNATIONAL PTY LTD 30th Respondent • MALWORTH SOUTH PTY LTD 31st Respondent • MALWORTH EAST PTY LTD 32nd Respondent • MALWORTH NORTH PTY LTD 33rd Respondent • HUNTINGDALE METALS PTY LTD 34th Respondent • HUNTINGDALE INTERNATIONAL PTY LTD 35th Respondent IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

[59]

[67]

[68]

UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets. (5) If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets. SCHEDULE B AFFIDAVITS RELIED ON Name of deponent Date affidavit made (1) Drew Hodgetts 29 November 2024 (2) Drew Hodgetts 5 December 2024

[70]

SCHEDULE C "Relevant Amount" prescribed under order 6(a) Party role Party name Relevant Amount in $AUD Sixth Respondent: Elution Metals Pty Ltd 1,907,764.82 Seventh Respondent: Elution North Pty Ltd 10,429,499.27 Eighth Respondent: Elution Group Pty Ltd 10,363,901.37 Ninth Respondent: Elution East Pty Ltd 10,050,521.40 Tenth Respondent: Elution FNQ Pty Ltd 6,986,432.58 11th Respondent: Elution International Pty Ltd 8,272,836.99 12th Respondent: Elution West Pty Ltd 8,274,622.73 13th Respondent: Elution South Pty Ltd 9,012,659.43 14th Respondent: Elution Central West Pty Ltd 5,651,410.13 15th Respondent: Elution South East Pty Ltd 5,700,902.08 16th Respondent: Elution North West Pty Ltd 5,961,843.19 17th Respondent: Elution South West Pty Ltd 4,756,650.14 18th Respondent: Araucana International Pty Ltd 4,805,100.66 19th Respondent: Araucana South Pty Ltd 4,564,434.03 20th Respondent: Araucana West Pty Ltd 4,349,411.51 21st Respondent: Araucana East Pty Ltd 4,496,956.28 22nd Respondent: Araucana North Pty Ltd 4,404,235.38 23rd Respondent: Mount Hood North Pty Ltd 4,709,132.92 24th Respondent: Mount Hood South Pty Ltd 4,528,255.88 25th Respondent: Mount Hood East Pty Ltd 4,758,815.96 26th Respondent: Mount Hood West Pty Ltd 5,093,411.74 27th Respondent: Mount Hood International Pty Ltd 4,634,417.01 28th Respondent: Malworth Metals Pty Ltd 4,758,146.26 29th Respondent: Malworth West Pty Ltd 4,778,922.10 30th Respondent: Malworth International Pty Ltd 4,795,783.46 31st Respondent: Malworth South Pty Ltd 4,681,464.68 32nd Respondent: Malworth East Pty Ltd 4,782,850.69 33rd Respondent: Malworth North Pty Ltd 4,778,613.01 34th Respondent: Huntingdale Metals Pty Ltd 4,804,510.86 35th Respondent: Huntingdale International Pty Ltd 4,899,157.60

[71]

REASONS FOR JUDGMENT (DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT) RANGIAH J: 1 The applicant (the Commissioner) applies ex parte for freezing orders against 35 respondents under rr 7.32 and 7.35 of the Federal Court Rules 2011 (Cth). 2 Rule 7.32 allows the Court to make a freezing order without notice to a respondent for the purpose of preventing the frustration or inhibition of the Court's processes by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied. 3 The allegations made by the Commissioner against the respondents can be summarised as follows. 4 The sixth to thirty-fifth respondents (the Companies), collectively claimed and received GST refunds and R&D offsets totalling about $76 million between 2018 and 2022. The second respondent was the director of the companies. 5 The Companies retained and used some of the amounts they received, and transferred the remainder to the first respondent (about $22 million); the third respondent (about $3 million); the fourth respondent (about $18 million); and the fifth respondent (about $2 million). 6 After conducting an audit, the Commissioner, determined that: (a) there was no evidence to support the claims that the Companies were carrying on any businesses of the nature claimed, or that they made the acquisitions claimed; (b) the Companies were not carrying on any enterprise in the period for which they had claimed the tax credits; and (c) the Companies were not entitled to be registered for GST or to claim the input tax credits claimed. 7 The Commissioner issued amended notices of assessment to each of the Companies and imposed administrative penalties. The Commissioner alleges that the Companies collectively owe a debt of approximately $172 million under the amended notices of assessment. The Commissioner alleges that the second respondent owes a debt of approximately $37 million under director penalty notices issued to him. The Commissioner also alleges that the first and third to sixth respondents have accessory liability under the principles in Barnes v Addy (1874) LR 9 Ch App 244. 8 The principles relevant to an application for a freezing order were recently summarised by Feutrill J in UFC Enterprise Morley Pty Ltd v UFC Enterprise Northbridge Pty Ltd [2024] FCA 1396 at [13]. I respectfully adopt that summary. 9 I am satisfied that the Commissioner's evidence demonstrates a good arguable case for final relief against each of the respondents. 10 I am satisfied that there is a danger of the respondents disposing of or otherwise dealing with their assets such that there is a risk that any judgment obtained by the Commissioner would not be able to be satisfied. I reach that conclusion because there is evidence of conduct by the respondents in the past which, taken at face value, demonstrates a risk that they might dispose of or dissipate assets in the future. 11 That evidence includes the Commissioner's assessment that the Companies made false claims in respect of GST refunds and R&D offsets. There is evidence that two of the Companies liquidated shares and transferred over $3 million from the proceeds to the third respondent after the amended notices of assessment were issued. There is evidence that eight of the Companies breached their obligations under securities deeds provided to the Commissioner by transferring about $106,000 to the fourth respondent. There is evidence that the first respondent sold a car and directed that the proceeds be deposited into an account which was not subject to a garnishee instead of accounts that were. In addition, the second respondent seems to have taken steps to ensure that he does not have significant assets in his name and that assets are instead held by the first respondent. 12 Further, the amounts alleged to be owing so significantly exceed the value of the assets of the respondents that it would provide an incentive to dispose of or dissipate assets: cf Deputy Commissioner of Taxation v Chemical Trustee Limited (No 4) [2012] FCA 1064 at [24]. 13 In these circumstances, I am satisfied that there is a danger of disposal or dissipation of the respondents' assets. 14 A matter that goes to the exercise of the Court's discretion is the Commissioner's admitted delay in bringing the application for a freezing order. The amended notices of assessment were issued on 21 November 2022, but the application was not brought until 5 December 2024. The Commissioner attributes the delay to prolonged negotiations concerning the claims and the need to undertake significant investigations and tracing in respect of the funds already transferred by the Companies. In these circumstances, I accept that the Commissioner's delay does not provide an adequate basis for declining to make the orders sought. 15 In the course of argument, I indicated that I was not prepared to make a number of the orders sought by the Commissioner in the form of the drafts provided to me. The orders that I decline to make include orders which would allow service on the first and second respondents by merely leaving the material at their place of residence and orders requiring the respondents to provide what are effectively answers to interrogatories. 16 Subject to those matters, I will make orders generally in the terms sought by the Commissioner. The matter will be returnable before me on 20 December 2024. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.