Deputy Commissioner of Taxation v Antlers P/L

[1992] FCA 978

149 2

JUDGMENT Na ..%!.B.~ mm-

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) NG 892 of 1992

GENERAL DIVISION 1

Between: DEPUTY COMMISSIONER OF

TAXATION

Applicant

And: ANTLERS PTY LIMITED & ORS

2	4 D E C 1992	Respondents
AUSI i 4 - l ; ; ~ ~

REOlS1 nv

EX TEMPORE JUDGMENT

EINFELD J SYDNEY 10 DECEMBER 1992

This matter came back into the list this afternoon at the urgent request of the parties for some interlocutory relief. It has now grown into an application for permanent relief in one respect. The interlocutory relief is that the present application should, having been restored to the list today by way of a direction, now be stood over for seven days and that at the same time an envisaged motion of the first respondent, and perhaps of others of the respondents, in matter no W976 of 1990 be listed for some urgent interlocutory relief before the long vacation.

time on that day to give to the matter but it may not be first

As in substance the presently requested interlocutory intervention of the Court is not opposed, I will make the necessary orders which will be that the application number 892 of 1992 will stand over to 17 December at 9.30am at which time we shall see what there is to be argued. I should have some

thing in the morning. There will be leave to serve short notice of any motion or motions in matter number W976 of 1990. The motion and any affidavits in support are to be served by not later than 4.00pm on Monday, 14 December and the motion may be returnable at 9.30am on Thursday 17 December together with the present adjourned matter.

The first respondent, Antlers Pty Limited, and the seventh respondent, Paul Simon Kavich, have made admissions through counsel today which are on the transcript and there is no point in my repeating them. They concede that the effect of those admissions is that a case has been made out for the relief sought in clause A of paragraph 2 of the application filed by the applicant on 4 December. The applicant seeks that that binding declaration of right now be made. The first and seventh respondents through counsel oppose the making of the declaration but it appears that their opposition goes only to the cost consequences if a declaration is made.

As it was explained to me, the respondents are concerned lest	by conceding a declaration, they might be taken to have
conceded that it was proper for the applicant to seek this relief in litigation and therefore that the applicant should be entitled to his costs of that part of the application. I can understand the argument in theory but in practice it does not seem to me to add up to very much. The argument is that the applicant did not write to the first or seventh respondents or their solicitor in advance of the commencement of the action and that therefore the action was premature because they would have made the admissions in response to correspondence that they have today made in court.
There is no evidence of that fact at the moment and, in fact, the only evidence before the Court is the affidavit originally filed in support of the application by the applicant. That evidence, of course prima facie, very preliminary and not yet challenged in any way, gives rise to an inference that the applicant entertained apprehensions that if it did not move to obtain ex parte interlocutory orders in respect of the various funds presently frozen under orders of the Court, the funds might in fact have been lost to the Deputy Commissioner to whom very significant sums are said to be owed.
Obviously, if those apprehensions were or were proved to be correct, then giving notice in advance that the applicant knew of the funds and was anxious to secure them to protect his interests might well have permitted the funds to be removed
before there was any chance of them coming the way of the applicant. I am not in any sense to be taken as suggesting
that the evidence establishes that fact but that is the clear basis upon which the applicant moved in the proceedings. It may, of course, turn out that those apprehensions were groundless, in which case there may be all types of consequences at least for the costs of the litigation if not the litigation itself.
The issue of costs cannot be dealt with now in the indirect way of denying to a party part of the relief which the evidence before the Court, in the strongest possible form of admissions, overwhelmingly demands. The rest of the application seeks many other declarations and orders. Unless there is no substance to any of those matters, it would appear that the costs involved in this first declaration would be of a quite minuscule kind in the overall picture. It is a matter which could obviously be dealt with by a taxation officer if called upon at the appropriate time.
For my part, I will note that the making of the declaration was sought immediately after and at the same hearing as the admissions announced by and on behalf of the first and seventh respondents; that the rest of the proceedings are continuing; that, at the present time at least, they appear likely to be of a fairly substantial kind; and that therefore this first declaration would appear to have fairly minimal influence on the costs of the action.
At a later time in the proceedings, the respondents will certainly be able to ask for any other orders or even
observations which they would wish me to make in relation to this particular relief so as to protect them as to costs, but I can see no reason why that matter should delay or hinder the making of the declaration.

I therefore declare that the funds deposited in the account No 355052309, with Citibank Savings Limited, are beneficially owned by Antlers Pty Limited, the first respondent.