Because the applicant refused or failed to make the deductions required of it under s221YL, it became pursuant to s 221YQ(1) liable to pay, inter alia, to the Commissioner, an amount equal to the withholding tax which it should have deducted. It has now made that payment. In the result, on its face, it becomes entitled under s221YQ(2) to recover from the respondent the amount which it has paid to the Commissioner. That entitlement clearly creates in it a right of action to payment by the respondent, assuming the facts all to be as I have indicated earlier and assuming in particular that there was a real liability to withholding tax arising, notwithstanding that the loan was made outside Australia.
I have not addressed these matters at this stage. It seems to me in these circumstances that the cause of action, that is to say, the statutory right of recovery created by s221YQ(2), arises in Australia either because its origin is in an Australian Act and it may be treated as a debt of record or because the right is a right to be paid in Australia. Either way, it seems to me that it is appropriate to say that the cause of action is one which arises in Australia. It may also come within other paragraphs of O8; it is not necessary to decide that now. There is an alternative cause of action based upon unjust enrichment.
Given that there is a statutory right, the alternative claim hardly seems of great significance and, for present purposes at least, I would regard it as incidental to the main cause of action. However, arguably it too would arise in Australia as the place of enrichment. In these circumstances, I am required by O2 to be satisfied that the applicant does have a prima facie case for the relief which is sought. I am so satisfied because, at least on a prima facie basis there is a statutory cause of action, all the terms of which have on the evidence before me been satisfied.
In particular there has been produced to me copies of the loan agreement and evidence on affidavit has been given by the applicant's solicitors. Although there is no direct evidence of payment of interest under the facilities that, no doubt, is readily to be inferred. It is alleged in correspondence and certainly not denied. I would accordingly grant leave to the applicant to serve the application and
statement of claim outside the Commonwealth pursuant to O8 r2 of the Federal Court Rules.
I certify that this and the
preceding four (4) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.