Oswal v Commissioner of Taxation

REASONS FOR JUDGMENT 1 This judgment deals with an oral application either to amend orders made by Nicholas J on 5 November 2015 (Oswal v Commissioner of Taxation (No 2) [2015] FCA 1143) or to extend time for compliance with Order 1 of those orders. By the orders made on that day, Nicholas J required the applicants to provide security for the respondent's costs of the proceedings in the amount of $1.2 million. The respondent was given liberty to apply on seven days' notice for orders for a stay or dismissal of the proceedings in the event that Order 1 was not complied with. 2 On 18 November 2015, the applicants sought leave to appeal against the orders made by Nicholas J. At the same time they sought a stay of his Honour's orders pending the determination of the application for leave to appeal and any appeal. Those interlocutory applications were heard by Griffiths J on 2 December 2015 and on the same day, his Honour dismissed both applications (Oswal v Commissioner of Taxation [2015] FCA 1366). 3 According to an affidavit of Rebekah Ruth Giles affirmed on 3 December 2015, which was read on the present application and to which no objection was taken, since delivery of the judgment and orders of Griffiths J at approximately 3.30 pm on 2 December 2015, urgent steps have been taken to secure the funds to satisfy the orders made by Nicholas J. 4 First, Ms Giles was instructed to seek the respondent's consent to an extension of time of seven days. That consent was withheld. 5 Next, Ms Giles received instructions that funds were obtainable, in part at least, from a third party and she proposed to the respondent an instalment plan involving payment of $100,000 today, $500,000 on 10 December 2015 and $600,000 on 5 January 2016. She sought the respondent's agreement to the instalment plan. The respondent refused to agree to it. 6 Ms Giles said in her affidavit that the additional time which is now sought by the application with which I am dealing is necessary for the applicants to continue to seek alternative funding, to agitate the dispute which the applicants now have with their litigation funder and to make international bank transfers. 7 I infer from that evidence that it is not certain that the additional amounts proposed to be paid on 10 December 2015 and 5 January 2016 are able to be paid on those dates or at all. I have no evidence that the amount proposed to be paid today has, in fact, been paid. I have no evidence what steps, if any, were taken to obtain the necessary funds to provide security for costs between the time of the orders made by Nicholas J on 5 November 2015 and today. 8 It is a matter of some significance, in my view, that the orders made by Nicholas J on 5 November 2015 are not self-executing. If Order 1 is not complied with, the respondent will have the right to apply for an order from a Judge of the Court that the proceedings be stayed or dismissed. Whether the respondent applies for such an order, and when such an application might be made, will no doubt require a judgment to be made by the respondent. If such an application is made, then the Judge who deals with it will no doubt consider the steps which have been taken by the applicants to comply with the orders made by Nicholas J up to that point in time and any other matters which might bear upon an application by the respondent to stay or dismiss the proceedings as a response to a failure to pay security as ordered, whether in whole or in part. 9 In the circumstances, it does not appear to me to be appropriate to amend the orders made by Nicholas J, nor to extend the time to comply with them. On the contrary, if security for costs does not commence to be paid at least in accordance with the timetable proposed and if an application is made that the proceedings should, as a consequence, be stayed or dismissed, then it may be highly relevant to know what practical steps the applicants have, in fact, taken from today forward. 10 The order which I make is that the oral application made today be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.