Commissioner of Taxation v Grimaldi (No. 2)

[2009] FCA 569

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Grimaldi (No. 2) [2009] FCA 569

COMMISSIONER OF TAXATION v PHILLIP GRIMALDI, GARRY BONACCORSO, IFTC BROKING SERVICES LTD, MGG CAPITAL PTY LIMITED AS TRUSTEE FOR WEBTEL MANAGEMENT SUPER FUND and INTERNATIONAL FINANCE TRUST COMPANY LIMITED (FIFTH RESPONDENT ON THE NOTICE OF MOTION FILED IN COURT ON 11 MAY 2009)

NSD 407 of 2009

GRAHAM J
22 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	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

INTERNATIONAL FINANCE TRUST COMPANY LIMITED
Fifth Respondent (on the Notice of Motion filed in Court on 11 May 2009)

JUDGE:	GRAHAM J
DATE OF ORDER:	22 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application by the applicant to read the affidavit of Cyril Kingsley Wood sworn 22 May 2009, in circumstances where a reasonable time has not elapsed between service of the affidavit and now, 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	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

INTERNATIONAL FINANCE TRUST COMPANY LIMITED
Fifth Respondent (on the Notice of Motion filed in Court on 11 May 2009)

JUDGE:	GRAHAM J
DATE:	22 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. An application has been made by the applicant to read the affidavit of Cyril Kingsley Wood.  Leave to file a copy of that affidavit in Court, notwithstanding non-compliance with Order 14 rule 5A of the Federal Court Rules, was granted earlier today.

2. At this stage, the third and fifth respondents indicate that they have not had an opportunity to consider the affidavit of Mr Wood, which was only served upon them a very short time ago, to determine whether or not he will be required for cross-examination. 

3. Senior counsel for the applicant informs the Court that the matter addressed by the affidavit of Mr Wood is an important matter which the Court will need to take into account in determining whether or not freezing orders should be made in respect of assets of the third and fifth respondents that may, as a matter of law, have a greater effect than the undertakings given to the Court by the third and fifth respondents on 20 May 2009 and repeated and refined earlier today.

4. Counsel for the third and fifth respondents opposes permission being granted to the applicant to use the affidavit of Mr Wood in circumstances where it is said that a reasonable time has not elapsed between service of the affidavit and the occasion for using it.  In my opinion, the time that has elapsed between service and intended use could not possibly be considered to be reasonable, given the importance of the evidence that is covered by Mr Wood’s affidavit.

5. I decline the application made by the applicant for leave to read Mr Wood's affidavit today.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:       27 May 2009

Counsel for the Applicant:	D B McGovern SC and A J O'Brien
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Third and Fifth Respondents:	G J Jones and G A F Connolly
Solicitor for the Third and Fifth Respondents:	Antanaskovic Hartnell

Date of Hearing:	22 May 2009
Date of Judgment:	22 May 2009