FEDERAL COURT OF AUSTRALIA
Commissioner of Taxation v Grimaldi (No. 4) [2009] FCA 748
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 LTD (FIFTH RESPONDENT ON THE NOTICE OF MOTION FILED IN COURT ON 11 MAY 2009)
NSD 407 of 2009
GRAHAM J
9 JULY 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 RespondentGARRY BONACCORSO
Second RespondentIFTC BROKING SERVICES LTD
Third RespondentMGG CAPITAL PTY LIMITED AS TRUSTEE FOR WEBTEL MANAGEMENT SUPER FUND
Fourth RespondentINTERNATIONAL FINANCE TRUST COMPANY LTD
Fifth Respondent (on the Notice of Motion filed in Court on 11 May 2009)
JUDGE:
GRAHAM J
DATE OF ORDER:
9 JULY 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application made on 9 July 2009 ore tenus, for a stay and for continuation of interlocutory freezing orders against the third respondent and against the fifth respondent to the Notice of Motion filed in Court on 11 May 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 RespondentGARRY BONACCORSO
Second RespondentIFTC BROKING SERVICES LTD
Third RespondentMGG CAPITAL PTY LIMITED AS TRUSTEE FOR WEBTEL MANAGEMENT SUPER FUND
Fourth RespondentINTERNATIONAL FINANCE TRUST COMPANY LTD
Fifth Respondent (on the Notice of Motion filed in Court on 11 May 2009)
JUDGE:
GRAHAM J
DATE:
9 JULY 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
An application has been made ore tenus by counsel for the applicant in the proceedings for the continuation of freezing orders previously made in respect of the third and fifth respondents, which are foreign corporations incorporated in Vanuatu. I have earlier today delivered reasons for judgment and made orders in respect of an application for freezing orders in respect of the assets of those foreign corporations, and declined to grant the relief sought in paragraphs 4 and 6 of the Notice of Motion filed 11 May 2009 against the third and fifth respondents respectively.
Counsel for the applicant has indicated that an application for leave to appeal is anticipated. It may be that such an application will be made to me as the judge who declined to make the orders sought. It may be that the application will be made to a Full Court.
At this stage the parties have not had an opportunity to consider my reasons for judgment delivered some five or ten minutes ago. I do not intend to take time to repeat what I have said in those reasons at this stage. It does not seem to me that this is a proper case in which additional interlocutory relief should be ordered above and beyond that of which the applicant already has the benefit.
In relation to the application for a continuation of the freezing orders which were expressed to continue up to and including 10 July, or earlier order, I do not intend to make any orders for the continuation of those freezing orders, and I do not intend to stay any of the orders which I have announced in respect of the resolution of the applicant’s claims against the third and fifth respondents in my reasons for judgment in Commissioner of Taxation v Grimaldi(No. 3) [2009] FCA 740.
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: 13 July 2009
Counsel for the Applicant: A J O'Brien Solicitor for the Applicant: Australian Government Solicitor Counsel for the Third and Fifth Respondents: G A F Connolly Solicitor for the Third and Fifth Respondents: Antanaskovic Hartnell
Date of Hearing: 9 July 2009 Date of Judgment: 9 July 2009
- AGLC
- Commissioner of Taxation v Grimaldi (No. 4) [2009] FCA 748
- Case
- [2009] FCA 748
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Commissioner had satisfied the necessary criteria for the issuance and continuation of freezing orders, particularly under the Australian Securities and Investments Commission Act 2001. Specifically, the court had to determine if there was a sufficient likelihood of the respondents disposing of assets that would satisfy the tax liabilities in question. Additionally, the court needed to weigh the potential prejudice to the respondents against the public interest in the enforcement of tax laws.
The court found that the Commissioner had not demonstrated a sufficient likelihood that the respondents would dispose of their assets to satisfy the tax liabilities, which was a critical criterion for the issuance of such orders. The court also considered the balance of convenience and found that the prejudice to the respondents outweighed the public interest in maintaining the freezing orders. Consequently, the application for the continuation of the interlocutory freezing orders was dismissed. The court's decision highlighted the stringent requirements necessary for the issuance and maintenance of such orders and the need for a clear demonstration of asset disposition by the respondents.
Orders
Orders of the court
1. The application made on 9 July 2009 ore tenus, for a stay and for continuation of interlocutory freezing orders against the third respondent and against the fifth respondent to the Notice of Motion filed in Court on 11 May 2009, be dismissed.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: GRAHAM J
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