Commissioner of Taxation v Grimaldi (No. 10)

[2009] FCA 1434

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Grimaldi (No. 10) [2009] FCA 1434

COMMISSIONER OF TAXATION v PHILLIP GRIMALDI, GARRY BONACCORSO, IFTC BROKING SERVICES LTD, MGG CAPITAL PTY LIMITED AS TRUSTEE FOR WEBTEL MANAGEMENT SUPER FUND, JAMES DARROCH WALLACE, JOSEPHINE MARY WALLACE and THOMAS GEORGE KLINGER

NSD 407 of 2009

GRAHAM J
27 NOVEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 407 of 2009

BETWEEN:

COMMISSIONER OF TAXATION
Applicant

AND:

PHILLIP GRIMALDI
First Respondent

GARRY BONACCORSO
Second Respondent

IFTC BROKING SERVICES LTD
Third Respondent

MGG CAPITAL PTY LIMITED AS TRUSTEE FOR WEBTEL MANAGEMENT SUPER FUND
Fourth Respondent

JAMES DARROCH WALLACE
Fifth Respondent

JOSEPHINE MARY WALLACE
Sixth Respondent

THOMAS GEORGE KLINGER
Seventh Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

27 NOVEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application made ore tenus by the fourth respondent on 27 November 2009 for a stay of execution of the judgment given for the applicant against the fourth respondent on 27 November 2009 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 407 of 2009

BETWEEN:

COMMISSIONER OF TAXATION
Applicant

AND:

PHILLIP GRIMALDI
First Respondent

GARRY BONACCORSO
Second Respondent

IFTC BROKING SERVICES LTD
Third Respondent

MGG CAPITAL PTY LIMITED AS TRUSTEE FOR WEBTEL MANAGEMENT SUPER FUND
Fourth Respondent

JAMES DARROCH WALLACE
Fifth Respondent

JOSEPHINE MARY WALLACE
Sixth Respondent

THOMAS GEORGE KLINGER
Seventh Respondent

JUDGE:	GRAHAM J
DATE:	27 NOVEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. An application for a stay of execution of the orders of the Court made earlier today on the applicant’s Amended Notice of Motion filed 6 October 2009 in respect of the fourth respondent has been made ore tenus by counsel for the fourth respondent.  It is unnecessary for me to summarise the reasoning set out in the judgment delivered earlier today in Commissioner of Taxation v Grimaldi (No. 9) [2009] FCA 1404 (‘Grimaldi No. 9’). It is sufficient to refer to the judgment of 13 July 2009 in Commissioner of Taxation v Grimaldi (No. 7) [2009] FCA 768 (‘Grimaldi (No. 7)’), in which the first and second respondents sought a stay of proceedings for recovery of moneys due under judgments against them which were given on 13 July 2009.

2. Those applications were dismissed.  Reference was made to, amongst other things, the relevant factors which ought to be taken into consideration in circumstances such as the present which were enunciated by French J, as his Honour then was, and which are set out at [3] in Grimaldi (No. 7). 

3. I have difficulty in seeing how there could be merit in an appeal by the fourth respondent from the judgment in Grimaldi (No. 9), sufficient to warrant a grant of leave to appeal, if one were to be sought.

4. In my opinion, nothing has been advanced by counsel for the fourth respondent to warrant the grant of a stay in the circumstances of this case

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        3 December 2009

Counsel for the Applicant:	D B McGovern SC and A J O'Brien
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Fourth Respondent:	M J Watts
Solicitor for the Fourth Respondent:	M J Woods & Co

Dates of Hearing:	27 November 2009
Date of Judgment:	27 November 2009