Commissioner of Taxation for the Commonwealth of Australia and Hong & Anor

[2017] FamCA 1046

FAMILY COURT OF AUSTRALIA

COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA & HONG AND ANOR [2017] FamCA 1046

FAMILY LAW – PRACTICE AND PROCEDURE – Application for discharge of injunction preventing disposition of property pending trial.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Commissioner of Taxation for The Commonwealth of Australia

1st RESPONDENT: Mr Hong

2nd RESPONDENT: Ms Biy

FILE NUMBER: BRC 4534 of 2016

DATE DELIVERED: 13 December 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 13 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Couper QC with Mr Coveney

SOLICITOR FOR THE APPLICANT: Australian Government Solicitor

1ST RESPONDENT: No Appearance

COUNSEL FOR THE 2ND RESPONDENT: Ms Heyworth-Smith QC with Mr Dodd

SOLICITOR FOR THE 2ND RESPONDENT: Robin Locke Litigation Lawyers Pty Ltd

Orders

IT IS ORDERED BY CONSENT THAT

1. Upon the Applicant, through its Counsel, giving the usual undertaking as to damages, the Order made by Hogan J on 19 May 2016 continue until trial or further earlier order of the Court.

2. By 20 December 2017, the Applicant file and serve any further affidavit material or expert reports it intends to rely upon in respect of the proceeding.

3. By 8 January 2018, the Applicant file and serve its written submissions in reply and any further list of authorities in respect of the proceedings.

AND IT IS ORDERED THAT

1. By no later than 4.00 pm on 10 January 2018, the parties notify each other in writing of any objections taken to any affidavit relied upon by the other in their case.

2. By no later than 4.00 pm on 11 January 2018, each party notify the other in writing of their response to the objections taken to their affidavit/s.

3. Any objections to evidence remaining in dispute be filed and served by no later than 12.00 pm on 12 January 2018.

4. Pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), the Court approves of the Applicant publishing an account of these proceedings by doing the following:

   (a)informing the First Respondent’s Trustee in Insolvency (“Trustee”) in Country G of the existence and nature of these proceedings;  and

   (b)informing the Trustee of the timing of any hearing of these proceedings.

5. The parties have liberty to apply on the giving of 24 hours’ notice in writing.

6. The parties’ costs of and incidental to today’s appearance are reserved.

AND IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 that it was reasonable to engage Counsel in this matter.

IT IS ORDERED THAT

1. Save as is provided above, the Application in a Case filed 4 December 2017 is dismissed.

IT IS DIRECTED THAT

1. Any application filed by any party for a witness to be made available for cross-examination by telephone at the hearing of this matter be listed before Hogan J at 10.00 am on 5 January 2018.

2. Any application seeking further relief relating to a prospective sale of the property situated at H Street, Suburb J in the State of Queensland be brought to the urgent attention of Hogan J.

3. Any Consent Tender Bundle of documents intended to be placed into evidence at the hearing of this matter be filed before the commencement of the hearing on 15 January 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (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

EASONS FOR JUDGMENT

1. There is before me this morning an Application in the Case, filed 4 December 2017 on behalf of the Second Respondent.  The relief, in fact, sought, though, was advanced in terms of a proposed Minute of Order provided by Ms Heyworth-Smith QC who appears on behalf of the Second Respondent this morning. 

2. There is no dispute as between the parties in relation to an order that deals with the provision by the Applicant, through his Counsel, Mr Couper QC, who appears on behalf of the Applicant this morning, giving the usual undertaking to damages.  So that issue is one that is not the subject of dispute. 

3. What is, though, the subject of dispute is whether the Second Respondent should, speaking broadly, be released from the restraints, imposed upon her actions by existing orders, in relation to the prospective sale of two properties:

   a.the Suburb D property;  and

   b.a property at H Street, Suburb J, owned by B Pty Ltd, a corporate entity in respect of which she is the sole director and shareholder.

The H Street property

1. In so far as the H Street property is concerned, Mr Couper QC places on the record the position of the Commissioner for Taxation (the Applicant in the proceedings and the Respondent to the current Application in the Case):  namely, that, upon provision by the Second Respondent of a contract relating to the sale by B Pty Ltd of the H Street property at either $2 million cash, unconditional, within 14 days, or $2.25 million, conditional, the Applicant would consent to the removal of the restraint imposed over the Second Respondent so as to permit her, in her capacity as sole director and shareholder of B Pty Ltd, to enter into such a contract.

2. Ms Heyworth-Smith QC, on behalf of the Second Respondent, seeks, though, an order in terms of that which is set out in Clause 1(a) of the proposed Minute provided to me, which would enable her client to have leave forthwith to sign a contract to sell the H Street property at a sale price of not less than $2 million. 

3. I am not persuaded to make an order in the terms sought by Ms Heyworth-Smith QC because it is not accompanied, it seems to me, by any proposition that there would be provision to the Applicant of documentation prior to any action by the Second Respondent in entering into a contract to sell the property. 

4. I have relied, in arriving at this determination, very much upon that placed on the record by Mr Couper QC for the Applicant.  It is clear, and a matter of record, therefore, that the Applicant’s positon is that, upon provision of a document containing an offer to purchase the H Street property in the amounts of either $2 million or $2.25 million, the Applicant would consent to the Second Respondent entering into such a contract for the sale of the H Street property.

5. That being the case, it seems to me to be most appropriate to provide the opportunity for the provision of any such contract – at whatever price, as I have remarked in discourse.  The fact of the existence of two offers, it seems, or at least one offer and one “perhaps offer”, might be suggestive of the fact that there might, in fact, be the prospect of obtaining a price higher than either $2 million or even the $2.25 million mentioned during the course of submissions; I would be loath to make any order that would restrict the prospect of ongoing negotiations designed to obtain the highest price possible for the sale of that piece of property;  and/or that would not provide, as between the parties to this litigation, transparency, vis-à-vis, the communication of any offers or counter-offers.

6. So for those reasons, then, I decline to make an order in the terms sought in paragraph 1(a) by Ms Heyworth-Smith QC. 

7. I intend to make a Notation, however, on the order and, thus, inform the Registry that any application seeking further relief relating to a prospective sale of the H Street property be brought to my attention with urgency because, should there be any difficulty in the event that the Second Respondent provides to the Applicant a signed offer capable of acceptance by her at a sum at, or greater than, the two figures I have mentioned, and, contrary to the position outlined by Mr Couper QC there was a change of position (for whatever reason) then that matter could be brought back before me with urgency and attended to.

Request for release of $250,000.00 by National Australia Bank to the Second Respondent

1. Ms Heyworth-Smith QC also seeks, as I understood her submissions, an order positively permitting the Second Respondent to approach the National Australia Bank, a commercial lender whose advanced funds are secured by mortgage over the H Street property, to see whether, in the event of a sale of the property, the National Australia Bank would be agreeable to the release of funds to her (the Second Respondent) in the amount of $250,000.00, so as to permit her to meet the costs of the litigation.

2. The submissions by Mr Couper QC in that respect are, in essence, that to make an order at present would be premature given the absence of detail in relation to, for example, the potential sale price other than the offer and prospective offer to which I have already referred, the absence of substantive evidence to support the quantification of expected litigation expenses in the amount sought, etcetera.

3. I note that there is no injunction, nor is one sought, to restrain the Second Respondent from approaching National Australia Bank to determine its attitude to its use of any funds received as a consequence of the sale of the H Street property.  It does not seem to me, on the state of the current evidence, to be appropriate that I do more than note that I decline to make an order positively permitting that course. 

The Suburb D property restraint

1. The third aspect of the dispute requiring resolution relates to the Suburb D property.  It is sought, in essence, that the existing restraint preventing the Second Respondent from dealing with that property be lifted so as to facilitate her entering into what might be a contract proffered at some time for its purchase.  The document, an unsigned contract, is that which is exhibited to the affidavit of Ms K, filed by leave this morning. 

2. It is unnecessary, in my view, to refer in further detail to that document given the fact that it is unsigned and it appears, on the evidence before me, to have come into existence, at least in its current form, only yesterday. 

3. I have taken into account the submissions made by Ms Heyworth-Smith QC in support of the making of the order.  I take into account the submissions in relation to what is asserted to be the impost upon the Second Respondent of a refusal of the application.  However, I am not persuaded, in the circumstances and on the evidence before me at present, that it is appropriate or that the circumstances justify the making of an order releasing the Second Respondent from the restraint which currently is imposed upon her.

4. In arriving at that conclusion, I have also taken into account the fact that the matter is listed for final hearing before me commencing on 15 January 2018 and that, as I remarked to Counsel during the course of discourse,  I am available to hear any urgent application at short notice.  I am not persuaded, as I say, on the evidence before me to make the order sought.

5. For those very short reasons, delivered orally, I decline to make orders in the terms sought by Ms Heyworth-Smith QC on behalf of the Second Respondent.

Order pursuant to s 121(9)(g)

1. I think the last remaining issue that requires disposition is the proposal by the Applicant for the making of an order pursuant to section 121(9)(g) of the Act to permit the Commissioner to publish an account of the proceedings by informing the First Respondent’s trustee in insolvency in Country G of the existence and nature of the proceedings and informing the trustee of the timing of any hearing of these proceedings.

2. Ms Heyworth-Smith QC, on behalf of the Second Respondent, neither consented to, nor opposed the making of such an order. 

3. It seems to me to be an order that is entirely appropriate and necessary so that all those who may be required to have notice of the matters to be dealt with and considered in the proceeding listed for final hearing early next year are made aware of the same.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 December 2017.

Associate:

Date:  13 December 2017