Commissioner of Taxation v Oswal (No 4)
[2015] FCA 912
•22 July 2015
FEDERAL COURT OF AUSTRALIA
Commissioner of Taxation v Oswal (No 4) [2015] FCA 912
Citation: Commissioner of Taxation v Oswal (No 4) [2015] FCA 912 Parties: COMMISSIONER OF TAXATION v RADHIKA PANKAJ OSWAL and MERCURY SERVICES LIMITED File number: WAD 264 of 2012 Judge: GILMOUR J Date of judgment: 22 July 2015 Catchwords: PRACTICE AND PROCEDURE – pleadings – whether the reply raises a new case – whether the reply is in response to an issue raised by the defence Legislation: Property Law Act 1969 (WA) s 89 Date of hearing: 22 July 2015 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr D Thomas Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: Mr C Withers Solicitor for the First Respondent: Kennedys Counsel for the Second Respondent: Mr R Tassell Solicitor for the Second Respondent: Pikes & Verekers
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 264 of 2012
BETWEEN: COMMISSIONER OF TAXATION
ApplicantAND: RADHIKA PANKAJ OSWAL and MERCURY SERVICES LIMITED
Respondents
JUDGE:
GILMOUR J
DATE OF ORDER:
22 JULY 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The parties are to provide a minute of proposed orders concerning additional directions that are required to be made in relation to the filing of a rejoinder, any additional evidence, any additional discovery, trial dates and any further pre-trial directions.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 264 of 2012
BETWEEN: COMMISSIONER OF TAXATION
ApplicantAND: RADHIKA PANKAJ OSWAL and MERCURY SERVICES LIMITED
Respondents
JUDGE:
GILMOUR J
DATE:
22 JULY 2015
PLACE:
PERTH
REASONS FOR JUDGMENT
I made ex tempore orders on 22 July 2015 that the parties provide a minute of proposed orders concerning pre-trial directions. These are those reasons edited but not such as to affect their substance.
This is a directions hearing but it involves issue being taken by the respondents in relation to para 5 of the reply filed by the applicant (the Commissioner). The short point put by the respondents is that the content of para 5 constitutes, in effect, a new case, and that if it is to be put, it should be the subject of an application by the Commissioner to amend its statement of claim which will then enable the first respondent (Mrs Oswal) particularly, but the respondents generally, to consider any amendments to their defences, any additional discovery that might follow consequentially, as well as any further evidence that they may wish to put on for the hearing.
Paragraph 5 of the reply is expressed to be in response to para 19 of Mrs Oswal’s further amended defence. In order to understand para 19 of the further amended defence, it is necessary to consider paras 22, 23 and 24 of the further amended statement of claim. Those paragraphs go directly to the Commissioner’s case in relation to its application under s 89 of the Property Law Act 1969 (WA). They are as follows:
22. The Mercury mortgage was made with an intention by Mrs Oswal to:
22.1.hinder or delay Mrs Oswal’s creditors executing against the Peppermint Grove property and the Dalkeith property in order to recover their debts;
22.2. therefore, with an intention to defraud Mrs Oswal's creditors.
PARTICULARS
(1) The Mercury mortgage was made very soon after the events in paragraphs 8 to 12 above;
(2) The purported advances made by Mercury, purportedly secured by the Mercury mortgage, pre-dated the making of the Mercury mortgage.
(3) By reason of the matters referred to in paragraphs 14 and 17 above, the Mercury mortgage was over the whole of the value of the Peppermint Grove property and the Dalkeith property.
(4) By reason of the matters referred to in paragraphs 10.2 and 15.2 above, it is to be inferred that Mercury is an entity which is related to Mrs Oswal.
(5) The inferences arising from the matters referred to in paragraphs 8 – 18 above.
(6) Further particulars may be provided after discovery or the issue of subpoenas.
23. By reason of the matters in paragraph 18 and 19 above, the Commissioner has been prejudiced by the making of the Mercury mortgage.
24. In the premises, the Mercury mortgage is voidable at the insistence of the Commissioner pursuant to section 89 of the Property Law Act 1969 (WA).
It is evident from those paragraphs and in particular para 22, that the Commissioner alleges that the Mercury mortgage was made with the intention, by Mrs Oswal, of hindering or delaying her creditors executing against the Peppermint Grove property and the Dalkeith property in order to recover their debts. There is no allegation made by the Commissioner concerning any particular named creditor.
Rather, that pleading reflects the language of s 89 which is referrable merely to “creditors”. Likewise, in para 22.2 where there is a further allegation by the Commissioner as to what Mrs Oswal did with the intention of defrauding her creditors. Again there is no mention of any particular creditor, whether it be the ANZ Bank or the Commissioner or otherwise.
Accordingly it is the Commissioner’s case that it was Mrs Oswal’s intention to defeat creditors at large. The issue as to whether or not the Commissioner was a creditor of Mrs Oswal was raised in response to those allegations in the further amended statement of claim by para 19(a) of the further amended defence. This provides, in relation to those three paragraphs in the further amended statement of claim, that the Commissioner was not a creditor of Mrs Oswal at the time the Mercury Mortgage was registered and had not informed her that he had any monetary claim against her.
That therefore raises at the instance of Mrs Oswal, not the Commissioner, two issues. The first is whether or not the Commissioner was a creditor of Mrs Oswal. Second, it raises the state of mind of Mrs Oswal insofar as concerns any monetary claim having been made against her by the Commissioner. Now, in his reply, the Commissioner responds to the first issue at para 5.1 where he says, in answer to para 19(a) of the further amended defence, that at the time the Mercury mortgage was registered, the Commissioner was a present creditor of Mrs Oswal.
So it seems to me that that is quite correctly and in orthodox fashion a reply to an issue raised for the first time by Mrs Oswal in her defence. The same, it seems to me, is the position in relation to paras 5.1.4.1 and 5.1.4.2 concerning her state of mind. As to that, the Commissioner replies by alleging what was her belief as to whether or not the Commissioner was a present or a future creditor, or alternatively, whether she suspected that to be the case.
Accordingly for these reasons, I am not persuaded that this is a new case being put forward by the Commissioner. It seems to me that it is properly the subject of a reply.
Now, to the extent that Mrs Oswal has concerns that she needs to meet those allegations then that may be done by putting on a rejoinder. It cannot be said by her that she is unaware of the case against her. The allegations pleaded in those paragraphs of the reply as to whether or not the Commissioner was a present or future creditor of Mrs Oswal is largely the subject of documentary evidence, if not entirely so. As to whether she believed or suspected that there were monetary claims made by the Commissioner, those are matters of inference again alleged to arise from documentary evidence.
I will direct the parties to put on, in light of these reasons, a minute of proposed orders by consent, hopefully, which will embrace any additional directions that are required to be made in relation to either the rejoinder, additional evidence, additional discovery, trial dates and any further pre-trial directions.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 21 August 2015
0
0
1