Commissioner of Taxation and Hong & Anor

[2016] FamCA 435

FAMILY COURT OF AUSTRALIA

COMMISSIONER OF TAXATION & HONG AND ANOR [2016] FamCA 435

FAMILY LAW – PROPERTY – Interim injunction restraining parties from dealing with property- Applicant seeking to set aside financial agreement entered into by the Respondents

Family Law Act 1975 (Cth)

APPLICANT: Commissioner of Taxation for the Commonwealth of Australia

FIRST RESPONDENT: Mr Hong

SECOND RESPONDENT: Ms Biy

FILE NUMBER: BRC 4534 of 2016

DATE DELIVERED: 19 May 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 19 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Derrington of Queen’s Counsel and Mr Ballans of Counsel

SOLICITOR FOR THE APPLICANT: Australian Government Solicitor

FIRST RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Mr Robinson, Robinson Locke Litigation Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Until trial or further order, Ms Biy, by herself, her agents, her employees, partners, nominees and/or servants be restrained and an injunction be granted restraining Ms Biy, by herself, her agents, employees, partners, nominees and/or servants from dealing with, transferring, selling, encumbering, otherwise using as security in any form, pending further order of this Court or written agreement between the applicant and the second respondent to this proceedings, her legal equitable and/or beneficial interest in the following assets:

   (a)the prestige motor vehicle, with registration number ‘…’ and with the Vehicle Identification Number/Chassis Number of …; and

   (b)       900,000 shares in B Pty Ltd ACN …; and

   (c)C Street, Suburb D Brisbane in the State of Queensland, with the real property address of Lots 1 on RP … and Lot 2 on RP… on Title Reference …, Lot 3 on RP … and Lot 4 on RP … and Lot 5 on RP … on Title Reference …, Lots 6 and 7 on RP … and Lots 8 and 9 on RP … on Title Reference ….

2. That Ms Biy in the capacity as sole director and shareholder of B Pty Ltd ACN … (“B”), will not dispose of or in any way deal with the assets of B that will reduce the value of B’s assets, other than in the ordinary course of its business, until order of this Court or agreement in writing between the second respondent and the Commissioner

3. Until trial or further order, Mr Hong, by himself, his agents, employees, partners, nominees and/or servants be restrained and an injunction be granted restraining Mr Hong, by himself, his agents, employees, partners, nominees and/or servants from dealing with, transferring, selling, encumbering, otherwise using as security in any form, pending further order of this Court or written agreement between the applicant and the first respondent to this proceeding, his legal, equitable and/or beneficial interest in the following assets.

   (a)the property located at C Street, Brisbane in the State of Queensland, with the real property addresses of Lots 1 on RP … and Lot 2 on RP… on Title Reference …, Lot 3 on RP … and Lot 4 on RP … and Lot 5 on RP … on Title Reference …, Lots 6 and 7 on RP … and Lots 8 and 9 on RP … on Title Reference …; and

   (b)the prestige motor vehicle, with registration number ‘…’ and with the Vehicle Identification Number/Chassis Number of ….

4. The costs of the application in respect of the interim orders be reserved.

5. The parties have liberty to apply on the giving of three business days’ notice in writing.

IT IS DIRECTED THAT

1. Any application brought by any party pursuant to Clause 5 of this Order be brought to the attention of the Honourable Justice Hogan.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Commissioner of Taxation & Hong and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4534 of 2016

Commissioner of Taxation for the Commonwealth of Australia

Applicant

And

Mr Hong

First Respondent

And

Ms Biy

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Having had the opportunity to read the material and the written submissions prepared on behalf of each of the parties during the time that the matter was stood down, I am persuaded in this matter that it is appropriate to make orders in terms of the draft provided to me by Mr Derrington on behalf of the Applicant - insofar as paragraphs 1, 2, 10, 11, 12 are concerned.  I do so because I am persuaded by the contents of the submissions provided and relied upon by the Applicant. 

2. I note, insofar as it is relevant to an assessment or consideration of the application as against the Second Respondent, that it is, I think, quite appropriately, conceded on her behalf by her legal representative that there is a case clearly established. Whilst Mr Derrington urges perhaps a stronger conclusion than an arguable case, it is, I think, sufficient at this time that I record that I am easily persuaded that the Applicant has an arguable case for the relief ultimately sought against the Second Respondent as particularised in the Initiating Application filed earlier this week.

3. I am satisfied - particularly having regard to matters of chronology and timing, as particularised (particularly, but not exclusively) at page 8 in paragraphs 51, 52, 53 and 54 of the written outline prepared on behalf of the Applicant - that there is a real risk of dissipation of assets and/or property absent the making of orders by way of interim or interlocutory order, of an injunctive nature as sought in the Initiating Application.   I am also satisfied, given what appears, at least on a prima facie basis, to be some changeability of position vis-à-vis retention or sale of assets; the receipt (at least it seems established on a prima facie basis) of significant amounts of funds in relatively short periods of time relatively recently - by which I mean earlier this year; the absence of information provided to the Applicant of any intention to enter into the Financial Agreement dated 24 April 2016, and the impact, if assets are sold and any net sale proceeds are dissipated out of the Commonwealth of Australia, that the balance of convenience favours the making of the orders that I have indicated will be made.

4. Insofar as the Application seeks orders in relation to the First Respondent, I also take into account and am persuaded that, taking into account the shortened time between the filing of the Initiating Application and the request for the interim application to be listed with some urgency, the Applicant has attempted to inform the First Respondent of the Application, through at least three means by way of three separate email transmissions sent respectively to:

   a)Mr Sneddon of Shand Taylor at 12.38 yesterday - noting that Mr Sneddon is the solicitor who, it seems on the material before me, has been engaged by the First Respondent to act on his behalf in proceedings currently on foot in the AAT and from whom information was conveyed in relation to the Suburb D property at least (and I think all of the property the subject of the Application) by various communications to the Applicant’s solicitors (that correspondence can be found at page 101, 109 of the annexures to the affidavit of Ms E filed 17 May 2016);  and

   b)Barry Nilsson Lawyers at 12.49 yesterday - noting that they are the lawyers who, from the face of the Financial Agreement dated 24 April 2016, acted for the First Respondent in the preparation and execution of that document;  and

   c)to the firm F Lawyers at 12.47 yesterday.

5. I take those matters into account also when considering the matters prescribed by Rule 5.12 of the Family Law Rules. I take into account also the history of the matter as outlined in the affidavit material relied upon by the Applicant:  I reiterate the importance of an assessment of chronology (taking into account those matters in particular, particularised at paragraphs 51 through 54 of the Outline of Submissions relied upon by the Applicant).  I also take into account that, in the context of lengthy dispute about not only the quantum, it would seem, of the judgment debt, but also liability for the same, there has been a necessity for the Applicant to approach the Court with some urgency given the more recent events that are particularly summarised in the paragraphs of the submissions to which I have already referred.

6. Under the Rules - Rule 5.13 of the Family Law Rules in  particular - any order made on an application without notice must be expressed to operate until a time specified in the order itself, or if the hearing of the application is adjourned, until a date of an adjourned hearing. 

7. I have given some consideration to fixing another date.  However, I have, on balance, concluded that that is something which, in the circumstances of this case, would more likely than not simply result in further cost to the Applicant.  Consequently, I intend to make a further order that the interim orders made will remain in force until further order of the Court - I am satisfied that such order complies satisfactorily with the requirements imposed by the Rules.  I also note that the particular order - which provides the parties liberty to apply on the giving of three business days’ notice - will ensure that, if he deems it appropriate, the First Respondent will have the opportunity (upon taking action positively to move the Court) to be heard further in relation to the injunctive orders restraining him.  

8. To ensure that that process takes place in an efficient manner, I will also make an order to the effect that any application made by any party pursuant to the liberty extended to them by the liberty to apply clause be referred to my Chambers so that this matter can be accorded a speedy re-listing.  In that way, all parties will not be required to file a further Application in a Case seeking to return the matter to Court.  It is for that reason that I also include the “liberty to apply” clause in the orders. 

9. I am, as I have said, satisfied that the orders are appropriate - and they will issue in the terms alluded to earlier.  

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 May 2016.

Associate:                 

Date:    19 May 2016