Commissioner of Taxation v MA

[1999] FCA 1509

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Ma [1999] FCA 1509

PRACTICE & PROCEDURE – service of originating process – motion for declaration that originating process not duly served or order that service of originating process be set aside –– where notice of motion not filed within 14 days of filing notice of conditional appearance – whether to dispense with compliance with Federal Court Rules

Federal Court Rules, O 9 r 6, O 9 r 7

COMMISSIONER OF TAXATION v PING MA & ORS

N690 OF 1999

EMMETT J
20 OCTOBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 690 OF 1999

BETWEEN:

COMMISSIONER OF TAXATION
Applicant

AND:

PING MA
First Respondent

GUO QIANG PAN
Second Respondent

MU ZHANG
Third Respondent

CITIBANK LIMITED
Fourth Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

20 OCTOBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The conditional appearance filed on 28 July 1999 does not have effect for any purpose as an unconditional appearance.

2.The requirements of Order 9 rule 7(2) be dispensed with in so far as that rule would preclude any application for orders under Order 9 rule 7.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 690 OF 1999

BETWEEN:

COMMISSIONER OF TAXATION
Applicant

AND:

PING MA
First Respondent

GUO QIANG PAN
Second Respondent

MU ZHANG
Third Respondent

CITIBANK LIMITED
Fourth Respondent

JUDGE:	EMMETT J
DATE:	22 OCTOBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 21 July 1999, I made orders ex parte on the application of the applicant, the Commissioner of Taxation (“the Commissioner”).  The orders included orders restraining the first respondent from selling, disposing of, transferring, encumbering or otherwise dealing with moneys in an account with the fourth respondent.

2. I also made an order abridging the time for service to 23 July 1999 of the amended application that I gave leave to file.  Order 7 was in the following terms:

   “Direct that service be effected on the first and third respondents by facsimile communication to Mr Niall Carney, Barrister, at Room 1341, Beijing International Hotel, Beijing.”

   That order was made in the light of evidence that was then before me that Mr Carney had intimated that he had instructions to act for the first respondent.  The amended application was made returnable before me at 9.30am on 28 July 1999.

3. On that day Mr Svehla, of counsel, appeared for the first respondent and proffered a notice of conditional appearance on behalf of the first respondent, which was filed in court.  The notice of conditional appearance was signed by Mr Alexander John Wakefield of Holman Webb, solicitors. 

4. In the course of the directions hearing on 28 July 1999, Mr Svehla indicated that he understood that I had, in effect, made an order in the nature of an order for substituted service by the Order 7 to which I have just referred.  I have…