Deputy Commissioner of Taxation v Triaswara

Federal Court of Australia|2022-12-02|Before: Cheeseman J

Solicitor for the Applicant: Mr K Metlej of Craddock Murray Neumann Lawyers

Counsel for the Respondents: The Respondents did not appear

BETWEEN: DEPUTY COMMISSIONER OF TAXATION Applicant

order made by: CHEESEMAN J DATE OF ORDER: 2 December 2022

Service

Pursuant to r 10.44 of the Federal Court Rules 2011 (Cth), the Applicant have leave nunc pro tunc to serve the First Respondent and Second Respondent outside of Australia with the following documents: (a) Amended Interlocutory Application filed 3 November 2022; (b) Affidavit of Sumitha Elizabeth George affirmed 22 August 2022; (c) Exhibit SEG-4; (d) Affidavit of Dennis Olthof sworn 10 November 2022; (e) Affidavit of Sumitha Elizabeth George affirmed 24 November 2022; and (f) Affidavit of Aisha Rami Nazzal sworn 25 November 2022. (together, the Documents)
Pursuant to r 10.48 of the Rules, the Documents are taken to be served on the First and Second Respondents: (a) in respect of the Documents referred to in Order 1(a)-(c), on 26 August 2022; (b) in respect of the Document referred to in Order 1(d), on 10 November 2022; (c) in respect of the Document referred to in Order 1(e), on 24 November 2022; and (d) in respect of the Document referred to in Order 1(f), on 25 November 2022.

Summary Judgment 3. Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Rules, judgment for the Applicant against the First Respondent in the amount of $5,351,001.51 (inclusive of General Interest Charges calculated to 31 October 2022).

Asset Disclosure Orders 4. Pursuant to r 7.33 of the Rules and on the basis of the undertakings given by the Applicant to the Court in Schedule A of the documents entitled "Penal Notice" directed to the First and Second Respondents comprising Annexures A to B of the Orders made by Abraham J on 7 June 2022 (the 7 June 2022 Penal Notices), asset disclosure orders be made against: (a) the First Respondent in the terms of the Penal Notice at Annexure A to these Orders. (b) the Second Respondent in the terms of the Penal Notice at Annexure B to these Orders.

Freezing Orders 5. Upon the Applicant continuing the undertakings in Schedule A of the 7 June 2022 Penal Notices, and in accordance with Order 1 made by Abraham J on 1 July 2022, the operation of each of the orders contained in the 7 June 2022 Penal Notices be extended until further order. 6. The proceedings be listed for further case management on 29 May 2023 (Next CMH Date). 7. If prior to the Next CMH Date the Judgment in Order 3 above is wholly satisfied, the Applicant shall apply on 2 days' notice to have the proceedings listed for a further case management hearing prior to the Next CMH Date and as soon as the business of the Court allows.

Notification 8. By 6:00pm on 2 December 2022, a copy of these Orders be sent to the Respondents at bayu.triaswara@gmail.com and raldahankina@gmail.com.

Costs 9. The First Respondent pay the costs of the Applicant to be assessed on a lump sum basis, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE A (BAYU TRIASWARA) PENAL NOTICE TO: BAYU TRIASWARA 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. TO: BAYU TRIASWARA INTRODUCTION

In this order: (a) 'you', means the First Respondent, Bayu Triaswara; (b) 'third party' means a person other than you and the Applicant'; (c) 'unencumbered value' means value free of mortgages, charges, liens or other encumbrances.

(a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way. 3. For the purposes of this order, (a) your assets includes: i. all your assets, whether or not they are in your name and whether they are 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 (b) the value of your assets is the value of the interest you have individually in your assets. PROVISION OF INFORMATION 4. Subject to paragraph 5, you must swear and serve on the Applicant on or before 16 December 2022 (or within such further time as the Court may allow) an affidavit setting out to the best of your ability all your assets world-wide giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets. 5. (a) This paragraph (5) applies if you wish to object to complying with paragraph 4 on the grounds that some or all of the information required to be disclosed may tend to prove that you: i. have committed an offence against or arising under an Australian law or a law of a foreign country; or ii. are liable to a civil penalty. (b) You must: i. disclose so much of the information required to be disclosed to which no objection is taken; and ii. prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and iii. file and serve on each other party a separate affidavit setting out the basis of the objection. ANNEXURE B (RALDA HANKINA) PENAL NOTICE TO: RALDA HANKINA 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. TO: RALDA HANKINA INTRODUCTION

In this order: (a) 'you', means the Second Respondent, Ralda Hankina; (b) 'third party' means a person other than you and the Applicant'; (c) 'unencumbered value' means value free of mortgages, charges, liens or other encumbrances.

INTRODUCTION 1 By amended interlocutory application dated 3 November 2022, the Deputy Commissioner of Taxation seeks summary judgment in the sum of $5,351,001.51 against Bayu Triaswara, the first respondent, pursuant to s 31A(1) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth). Alternatively, the Deputy Commissioner seeks default judgment in the same amount pursuant to r 5.23. The judgment sum is in respect of a tax debt. The Deputy Commissioner also seeks asset disclosure orders against Mr Triaswara and his spouse, Ms Ralda Hankina, the second respondent, and orders in relation to service.

CONCLUSION IN SUMMARY FORM 2 For the reasons which follow, I am satisfied that Mr Triaswara has no reasonable prospect of successfully defending the proceeding within the meaning of r 26.01(1)(e) of the Rules. Accordingly, I will make an order for summary judgment against Mr Triaswara. I am further satisfied that it is appropriate to make the asset disclosure orders sought by the Deputy Commissioner against Mr Triaswara and Ms Hankina under r 7.33. Although it is not strictly necessary to do so, for reasons of clarity, in circumstances where Mr Triaswara and Ms Hankina do not have legal representation, I will make an order that expressly confirms the continuation of the existing freezing orders which were first made on 7 June 2022.

Respondents have not formally participated in the proceedings 3 Mr Triaswara is a dual citizen of Indonesia and Australia. Ms Hankina is an Indonesian citizen. The respondents are in Indonesia, having departed Australia on 16 May 2022. They have not filed an address for service in the proceedings. They have not attended any interlocutory or case management hearings in the proceedings. They have not availed themselves of electronic platform links which were provided to facilitate remote appearances. The respondents have, however, repeatedly communicated by email with the Deputy Commissioner's legal advisers and the Court, including most recently on 23 November 2022. It is clear that the respondents are aware of the proceedings and that the amended interlocutory application was listed for hearing on 25 November 2022. 4 On 4 August 2022, I made orders that, amongst other things, required the respondents to file and serve a notice of address for service by 11 August 2022 if they sought to be heard in the proceedings. A copy of the orders were emailed to the respondents, using the address from which Mr Triaswara has regularly communicated. 5 On 18 October 2022, Mr Triaswara sent an email to the Court and lawyers for the Deputy Commissioner attaching a document (with a translated copy) which he asserted was an affidavit sworn in compliance with what he incorrectly understood to be an asset disclosure order made in the proceedings. As noted below, while it is correct that the Deputy Commissioner sought asset disclosure orders in the originating process, those orders were not made at the ex parte hearing. Mr Triaswara asserted that the purported affidavit provided a "[d]eclaration of all assets in possession, witnessed (in person) and sealed by a notary…and translated by a sworn translator…[and] [p]roof of the said assets in possession…". Mr Triaswara asserts that by means of this document, he has given disclosure in respect of the assets held by both him and Ms Hankina (Joint Asset Disclosure Declaration). 6 Following a subsequent case management hearing on 20 October 2022, I made orders listing the interlocutory application filed on 24 August 2022 for hearing. I further ordered that the Deputy Commissioner email the respondents informing them of what transpired at the case management hearing, providing a copy of the orders made on 20 October 2022 and notifying the respondents that they must file and serve a notice of address for service prior to 25 November 2022 if they sought to be heard on the interlocutory application. The Deputy Commissioner's legal representatives duly attended to communicating with the respondents in accordance with the Court's orders. 7 As at the date of the hearing of the interlocutory application, the respondents had not filed an address for service. They did not attend the hearing. They did not request that the proceedings be heard in a way that would facilitate their participation remotely. 8 As noted above, on 23 November 2022, Mr Triaswara communicated with the Court and the Deputy Commissioner's legal representatives. In that email, he said that he acted on his own behalf and also for Ms Hankina, his spouse. Mr Triaswara referred to the Joint Asset Disclosure Declaration which he had provided under cover of his 18 October 2022 email. He also referred to the Deputy Commissioner's written submissions in relation to asset disclosure orders and sought to defend the validity of the Joint Asset Disclosure Declaration, which was challenged by the Deputy Commissioner. Mr Triaswara asserted, amongst other things, that a notary had witnessed and sealed the document with legal documents going to proof of his marriage with Ms Hankina, and that the document "satisfies the collective ownership of assets" of both him and his wife.

Outline of the proceedings 9 The Deputy Commissioner seeks judgment in respect of a tax debt in the sum of $5,351,001.51. The tax debt arises in circumstances where Mr Triaswara claimed GST tax input credits to which he was not entitled. He has been issued with amended assessments accordingly, including with respect to shortfall penalties. He has not objected to the amended assessments. 10 The proceedings were commenced on 7 June 2022 and heard before the general duty judge, Abraham J, on an ex parte basis. Justice Abraham made freezing orders that same day against Mr Triaswara and Ms Hankina to the effect that they must not remove from Australia or dispose of, deal with or diminish the value of their assets in Australia up to the unencumbered value of AUD$5,159,565.65, which amount approximated the claimed tax debt at that time. On 15 June 2022, as general duty judge, Raper J made orders extending the operation of the freezing orders until 11:59pm on 1 July 2022. On 1 July 2022, Abraham J made orders extending the operation of the freezing orders until further order of the Court. As mentioned above, the Deputy Commissioner's application for asset disclosure orders, which was included in the originating application, was not dealt with on an ex parte basis. That part of the relief was stood over for separate hearing, after the respondents had been served. 11 The freezing orders were sought on the basis of the Deputy Commissioner's fear that upon learning of the substantial amounts of tax and penalties for which Mr Triaswara had been assessed, both Mr Triaswara and Ms Hankina may be motivated to inhibit or frustrate the Court's processes by removing any remaining assets from Australia, and otherwise dealing with their assets in a way that would frustrate the enforcement of a prospective judgment in favour of the Deputy Commissioner. 12 The evidence led by the Deputy Commissioner on the ex parte application demonstrated that Mr Triaswara and Ms Hankina departed Australia on 16 May 2022, shortly after Mr Triaswara was informed on 26 April 2022 by the Deputy Commissioner that it was conducting a review of the Business Activity Statements (BAS) lodged by him between October 2020 to 31 January 2022 claiming GST tax input credits of $2,639,372. Mr Triaswara and Ms Hankina have not returned to Australia since they departed. 13 The evidence on the ex parte application also demonstrated that Mr Triaswara and Ms Hankina had taken steps to liquidate and transfer their assets before leaving Australia. On 16 May 2022, the date of their departure, Mr Triaswara and Ms Hankina listed an unencumbered parcel of land, Lot 148 in Survey Plan 218945 and known as 87 Kate Circuit, Rochedale QLD 4123 (the Rochedale Property), for sale by tender closing on 8 June 2022. The Deputy Commissioner led evidence to demonstrate that the Rochedale Property was purchased using funds which are traceable to the GST credits claimed by Mr Triaswara. Between 2 and 16 May 2022, Mr Triaswara and Ms Hankina transferred $117,592.00 offshore. On 24 May 2022, Mr Triaswara withdrew all remaining funds (totalling $33,509.12) from his CMC Markets share trading account. On 30 May 2022, Mr Triaswara sold his car, a 2019 Mitsubishi Outlander, valued at approximately $34,100. 14 I interpolate to note that the basis upon which the orders were sought was consistent with the purpose which freezing orders are intended to serve, as recognised in Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 (at 624-626). In the context of the present application, I further note that freezing orders can operate to serve that purpose both before and after judgment: rr 7.32(1) and 7.35; Freezing Orders Practice Note (GPN-FRZG) at [2.20]; Deputy Commissioner of Taxation v Cutili Invest 88 Pty Ltd [2020] FCA 47 at [4].

LEGISLATIVE FRAMEWORK 15 The Deputy Commissioner relies on the usual provisions with regard to the nature and proof of tax debts. The relevant provisions are identified in the detailed written submissions of the Deputy Commissioner. I accept those submissions. The principles are well-known. It is not necessary to descend into the whole of the detail included in the Deputy Commissioner's submissions.

MR TRIASWARA'S TAX-RELATED LIABILITIES 16 The Deputy Commissioner has established that a running balance account (RBA) was established in respect of certain primary tax debts of Mr Triaswara (Mr Triaswara's RBA). Division 2 of pt IIB of the Taxation Administration Act 1953 (Cth) (TAA53) provides for the Commissioner of Taxation to establish RBAs. Pursuant to s 8AAZC of the TAA53 the Commissioner may establish a RBA in respect of primary tax debts of an entity. A primary tax debt is defined in s 8AAZA of the TAA53 as any amount due to the Commonwealth directly under a taxation law. 17 The primary tax debts allocated to Mr Triaswara's RBA pursuant to s 8AAZD of the TAA53 include amended assessments of net amount for the periods from 1 October 2020 to 31 January 2022, and assessment of administrative penalties for a shortfall penalty for the periods from 1 October 2020 to 31 January 2022. Notice of the amended assessments were given to Mr Triaswara on or about the dates on which the amended assessments were issued, as required by s 155-10 of sch 1 to the TAA53 (net amount) and s 298-10 of sch 1 to the TAA53 (administrative penalties). The notices of assessment are given conclusive evidential force by virtue of s 350-10 of sch 1 to the TAA53. 18 It is a fundamental and established feature of the statutory scheme relating to the recovery of assessed liabilities that the effect of s 350-10 of sch 1 to the TAA53 is that the correctness of a notice of assessment cannot be challenged in recovery proceedings on any ground: see F J Bloemen Pty Ltd v Federal Commissioner of Taxation [1981] HCA 27; 147 CLR 360; Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; 237 CLR 146; Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; 237 CLR 473. 19 I note that for the purposes of s 8AAZD(2) of the TAA53, a primary tax debt does not include a RBA deficit debt or general interest charge (GIC). A RBA deficit debt is defined in s 8AAZA of the TAA53 to mean a balance in favour of the Commissioner based on primary tax debts that have been allocated to the RBA and that are currently payable, and payments made in respect of current or anticipated primary tax debts of the entity and credits to which the entity is entitled under a taxation law that have been allocated to the RBA. If there is a RBA deficit debt at the end of a day, the tax debtor is liable to pay the Commonwealth that amount under s 8AAZH of the TAA53. Pursuant to s 8AAZF(1) of the TAA53, GIC is imposed on the balance of the RBA deficit debt at the end of each day that there is a RBA deficit debt and the balance of the RBA is altered in the Commissioner's favour by the amount of the GIC. 20 The liabilities allocated to Mr Triaswara's RBA include liabilities for amended assessments of net amount and assessments of administrative penalties. Mr Triaswara's RBA is in favour of the Commissioner, and thus Mr Triaswara has a RBA deficit debt within the meaning of s 8AAZH of the TAA53. On each day that there is a RBA deficit debt, Mr Triaswara's RBA was and is altered in favour of the Commissioner through the imposition of a GIC. As at 24 November 2022, Mr Triaswara's RBA deficit debt was $5,351,001.51. 21 The Deputy Commissioner has provided to the Court an evidentiary certificate pursuant to s 8AAZJ of the TAA53 certifying, inter alia, Mr Triaswara's indebtedness to the Commonwealth in respect of the tax-related liabilities for the RBA deficit debt the subject of the claim in the proceedings in the amount of $5,351,001.51 as at 24 November 2022. 22 Pursuant to s 8AAZI of the TAA53, the production by the Deputy Commissioner of a RBA statement is prima facie evidence that a RBA was duly kept, and that the amounts and particulars of the statement are correct. The evidentiary certificate given pursuant to s 8AAZJ of the TAA53 is prima facie evidence of the matters contained in it including the allocation of credits and total RBA deficit debt owed: Deputy Commissioner of Taxation v Lewer [2001] VSC 114 at [6]; Deputy Commissioner of Taxation v Raskovic [2009] NSWSC 281; 75 ATR 359 at [22]; Deputy Commissioner of Taxation v Epov [2008] NSWSC 1085 at [32]. Mr Triaswara has not attempted to displace the prima facie force of the RBA statement and the s 8AAZJ certificate: Evans v Deputy Commissioner of Taxation [2012] NSWCA 396; 89 ATR 108 at [105]. 23 The balance of a RBA deficit debt due from time to time is a debt due to the Commonwealth, payable to the Commissioner, and recoverable by the Deputy Commissioner: s 250-10(2), item 85 and s 255-5 of sch 1 to the TAA53.

Summary Judgment 24 The Court may grant summary judgment against a party pursuant to r 26.01(1)(e) where the party has no reasonable prospects of successfully defending a proceeding. A defence need not be hopeless or bound to fail for it to have no reasonable prospect of success: s 31A(3) of the Act. 25 The relevant principles relating to an application for summary judgment are well settled: see Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955; Rana v Google Australia Pty Ltd [2013] FCA 60; C v Commonwealth of Australia [2015] FCAFC 113; 234 FCR 81; Quach v Commissioner of Taxation [2019] FCA 1729 at [12]. The party seeking summary judgment bears the onus of persuading the Court that the proceedings should be determined summarily: Windsor v Sydney Medical Service Co-operative Ltd (No 2) [2009] FCA 704 at [38]. The power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer v Commonwealth at [24], [60].

CONSIDERATION 26 For the reasons which follow, I am satisfied that it is appropriate to make an order for summary judgment against Mr Triaswara. 27 First, the Deputy Commissioner has produced a RBA statement which, pursuant to s 8AAZI of the TAA53, is prima facie evidence that the RBA was duly kept and that the amounts and particulars in the statement are correct. 28 Secondly, the Deputy Commissioner has also produced a certificate under s 8AAZJ of the TAA53 signed by the Deputy Commissioner which provides prima facie evidence of the matters contained in it. 29 Thirdly, the primary tax debts allocated to Mr Triaswara's RBA are assessed liabilities. The effect of the conclusive evidence provision in s 350-10(1) of sch 1 to the TAA53 is that Mr Triaswara, having not objected to the amended assessments, is not able to contest the relevant tax debts in these proceedings: see Chhua v Federal Commissioner of Taxation [2018] FCAFC 86; 262 FCR 228 at [8]-[11]; Deputy Commissioner of Taxation v Buzadzic [2019] VSCA 221; 348 FLR 213 at [66]-[70]; Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation [2017] NSWCA 17; 105 ATR 35 at [43]-[54]; Lamont v Deputy Commissioner of Taxation [2019] NSWCA 221 at [11]; Deputy Commissioner of Taxation v Cutili Invest 88 at [10]-[11]; Deputy Commissioner of Taxation v Vasiliades [2015] FCA 412; Deputy Commissioner of Taxation v Songa Offshore Pte Ltd [2013] FCA 839; 95 ATR 779 at [27]-[31]). 30 Fourthly, Mr Triaswara has not advanced any defence, nor in his informal communications has he put forward anything which could reasonably demonstrate the existence of a triable issue or a real question to be tried, either of fact or law. 31 Accordingly, I am satisfied that Mr Triaswara has no reasonable prospect of success in defending the Deputy Commissioner's claim for judgment and that Mr Triaswara is liable for the amount claimed.

Default Judgment 32 In light of my conclusion in respect of summary judgment, it is not necessary to address the Deputy Commissioner's claim for default judgment in the alternative.

ASSET DISCLOSURE ORDERS 33 The Deputy Commissioner also seeks asset disclosure orders, which are an ancillary order available under r 7.33. The Court may make an order ancillary to a freezing order as the Court considers appropriate, including, but not limited to, for the purposes of eliciting information relating to assets relevant to the freezing order: r 7.33(2)(a). 34 A freezing order is made effective by an order that the respondent disclose the nature, value and location of their assets. The High Court in Deputy Commissioner of Taxation v Shi [2021] HCA 22; 113 ATR 429 (Kiefel CJ, Gageler and Gleeson JJ) said (at [22]) (footnotes omitted): 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. 35 Although Mr Triaswara and Ms Hankina have not appeared in the proceedings, that is not an impediment to the Court making asset disclosure orders against them. The Court's Freezing Orders Practice Note (GPN-FRZG) permits the making of asset disclosure orders without notice. That Mr Triaswara and Ms Hankina have failed to appear is not an impediment to the asset disclosure orders being made if the Court is satisfied that the asset disclosure orders should be made in the relevant circumstances: Macquarie Bank v Riley Street Nominees [2005] NSWSC 162 at [14]. 36 Here, Mr Triaswara and Ms Hankina are on notice that the Deputy Commissioner seeks asset disclosure orders. Indeed, Mr Triaswara and Ms Hankina appear to be under the misapprehension that asset disclosure orders have already been made. As noted above, Mr Triaswara in the 23 November 2022 email asserted on their mutual behalf that the purported affidavit is validly sworn and, in disclosing the "collective ownership of assets…[is] structured to satisfy asset disclosure declaration as required by the law." 37 The Deputy Commissioner submits that the Joint Asset Disclosure Declaration is not a satisfactory substitute for an affidavit made pursuant to asset disclosure orders made by the Court. I accept that submission for the following reasons advanced by the Deputy Commissioner. First, the Joint Asset Disclosure Declaration was not made in answer to an order of the Court. Because no order was made, it necessarily follows that the respondents did not receive a penal notice issued by the Court which would in the ordinary course accompany an asset disclosure order. As a consequence, if it proves to be the case that the Joint Asset Disclosure Declaration is not a complete or truthful disclosure, the Deputy Commissioner would not be able to pursue contempt proceedings against the respondents. Secondly, the Joint Asset Disclosure Declaration is attended by various curiosities, including principally that it purports to provide a "joint" disclosure of assets prepared without regard to any separate ownership of assets of Mr Triaswara and Ms Hankina, or the extent of each of their respective interests in jointly owned assets. The Joint Asset Disclosure Declaration purports to give worldwide disclosure of the respondents' assets. It includes an assertion that Mr Triaswara and Ms Hankina have "no any kind of other assets in Australia nor in other countries". That would be unusual, if it is correct, in circumstances where the only assets disclosed are in Australia and both respondents currently reside outside of Australia. It is appropriate that each of the respondents be required to provide verified disclosure of their respective assets. 38 Accordingly, I am satisfied that it is appropriate to make an order in relation to asset disclosure as sought by the Deputy Commissioner. In this case, the Court has made freezing orders on the basis that there was a danger that a prospective judgment of the Court against Mr Triaswara would be wholly or partly unsatisfied. Mr Triaswara has not challenged the continuation of the freezing orders. To the contrary, in some of his informal communications, Mr Triaswara has made settlement overtures based on forfeiting to the Deputy Commissioner the assets which are restrained. A settlement along those lines would not appear likely to satisfy the whole of the tax debt in issue. The Deputy Commissioner presses for asset disclosure orders notwithstanding the settlement overture. I am satisfied that asset disclosure orders will facilitate the purpose served by the freezing orders in identifying any assets of Mr Triaswara and Ms Hankina and will assist in protecting against dissipation and in this way mitigate the risk that the Court's processes are undermined. 39 The entry of judgment against Mr Triaswara in respect of the Deputy Commissioner's substantive claim does not bring to an end the freezing orders. In circumstances where the judgment sum exceeds the estimated value of the presently identified assets which have been restrained the making of the asset disclosure orders is warranted. In the circumstances of this case, and given that the respondents are not represented, I will also make orders expressly continuing the freezing orders: Deputy Commissioner of Taxation v Cutili Invest 88 at [21]-[25]. In doing so, I am conscious that such an order is not strictly necessary but in my view it is desirable for reasons of clarity to make the order.

SERVICE 40 Pursuant to r 10.44 the Deputy Commissioner seeks leave to serve the respondents outside of Australia with the following documents: amended interlocutory application filed 3 November 2022; affidavit of Sumitha Elizabeth George affirmed 22 August 2022; exhibit SEG-4; affidavit of Dennis Olthof sworn 10 November 2022; affidavit of Sumitha Elizabeth George affirmed 24 November 2022; and an affidavit of Aisha Rami Nazzal sworn 25 November 2022 (together, the Documents). The Deputy Commissioner has led evidence that satisfies the requirements of r 10.44(2), and in turn the requirements specified in r 10.43(3)(a) to (c). I am satisfied that it is appropriate to make an order under r 10.44 granting the Deputy Commissioner leave to serve Mr Triaswara and Ms Hankina with the Documents outside of Australia. I am further satisfied that leave should be granted nunc pro tunc. 41 The Deputy Commissioner also seeks an order for deemed service pursuant to r 10.48. In doing so, the Deputy Commissioner has demonstrated that it would be impracticable to serve the Documents on Mr Triaswara and Ms Hankina in Indonesia in the way that would otherwise be required: Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 at [52]; Commissioner of Taxation v Zeitouni [2013] FCA 1011; 306 ALR 603 at [67]-[70]. The Deputy Commissioner has demonstrated that the Documents have already been communicated in a way that has caused the Documents to come to the attention of Mr Triaswara, and I infer, in the whole of the circumstances, to Ms Hankina as well. 42 I am satisfied that an order for deemed service is appropriate under r 10.48 in circumstances where the Documents have already been sent by email to Mr Triaswara and Ms Hankina. The service of the Documents pursuant to the relevant Memorandum of Understanding is not practicable in the present circumstances - the Deputy Commissioner is not aware of Mr Triaswara and Ms Hankina's address in Indonesia and service if effected through diplomatic channels may be subject to delay and objection. I am satisfied that Mr Triaswara and Ms Hankina are aware of these proceedings and have chosen not to engage formally with the proceedings. They have taken no substantive steps to defend the claims made against them.

CONCLUSION 43 For the reasons given, I am satisfied that it is appropriate to give summary judgment for the Deputy Commissioner against Mr Triaswara pursuant to r 26.01. I will make an order that Mr Triaswara pay the Deputy Commissioner's costs. I am also satisfied that it is appropriate to make the asset disclosure orders sought in respect of the respondents and that to do so is consistent with authority. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (25)