Deputy Commissioner of Taxation v Miraki (Application to Join William Roberts Lawyers)

[2021] FCA 1573

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Miraki (Application to Join William Roberts Lawyers) [2021] FCA 1573    

File number:

NSD 253 of 2021

Judgment of:

THAWLEY J

Date of judgment:

7 December 2021

Date of publication of reasons:

15 December 2021

Catchwords:

PRACTICE AND PROCEDURE – application to join respondent’s solicitors to proceeding – where Federal Court of Australia made orders freezing the respondent’s property on 22 March 2021 – freezing orders varied by consent, including to pay respondent’s legal fees and to enable sale of property in Castle Hill – proceeds of sale of Castle Hill property paid into Federal Court – Castle Hill property subject of dispute in NSW Court of Appeal – where intervener in Federal Court proceeding claims beneficial ownership of moneys paid into the Federal Court – Federal Court not informed of NSW Court of Appeal proceeding – where solicitor and counsel acted for respondent in Federal Court and NSW Court of Appeal proceedings

Legislation:

Federal Court Rules 2011 (Cth) rr 1.32, 9.05

Cases cited:

Dauguet v Centrelink [2015] FCA 395

El-Cheikh v Miraki [2021] NSWCA 271

Karellas Investments Pty Ltd v FW Projects Pty Limited (in liq) [2021] FCA 870

McAlister v New South Wales (2014) 223 FCR 1; [2014] FCA 702

Division:

General Division

Registry:

New South Wales

National Practice Area:

Taxation

Number of paragraphs:

5

Date of hearing:

7 December 2021

Counsel for the Applicant:

Mr P Afshar

Solicitor for the Applicant:

HWL Ebsworth

Counsel for the Respondent:

Mr D Allen

Solicitor for the Respondent:

William Roberts Lawyers

Counsel for the Intervener:

Mr M Condon SC

Solicitor for the Intervener:

Cornwalls

Counsel for the Prospective Second Respondent:

Mr D McGovern SC

ORDERS

NSD 253 of 2021

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION

Applicant

AND:

SEPIDEH MIRAKI

Respondent

WILLIAM ROBERTS PTY LTD (ACN 115 089 864) TRADING AS WILLIAM ROBERTS LAWYERS

Prospective Second Respondent

OMAR EL-CHEIKH

Intervener

ORDER MADE BY:	THAWLEY J
DATE OF ORDER:	7 DECEMBER 2021

THE COURT ORDERS THAT:

1.William Roberts Pty Ltd (ACN 115 089 864) trading as William Roberts Lawyers be joined as the second respondent to these proceedings.

2.The intervener file and serve points of claims by 13 December 2021.

3.The first and second respondent file and serve any evidence and defence to the points of claim by 17 December 2021.

4.The intervener file and serve any supplementary submissions by 20 December 2021.

5.The first and second respondent file and serve an outline of submissions by 12.00pm on 22 December 2021.

6.The amended interlocutory application filed by the first respondent on 28 October 2021 be dismissed.

7.Costs of today reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

(Revised from Transcript)

1. On 10 November 2021, leave was granted to Mr El-Cheikh to intervene in these proceedings.  By an interlocutory application dated 1 December 2021 Mr El-Cheikh applied for various declarations and orders.  One of the orders Mr El-Cheikh sought was an order that William Roberts Pty Ltd (ACN 115 089 864) trading as William Roberts Lawyers, be joined as a respondent to these proceedings.  It is that order which was the subject of argument today, at least some of the remaining orders having been listed for argument on 23 December 2021.

2. Mr El-Cheikh claims beneficial ownership of moneys which have been paid into court.  Moneys have been paid into court on two occasions, one in relation to the sale of a property located in Castle Hill, and one in relation to the sale of a different property.  Mr El-Cheikh claims beneficial ownership of both amounts, pursuant to arrangements he had with Ms Miraki, which were the subject of a judgment of the New South Wales Court of Appeal – see El-Cheikh v Miraki [2021] NSWCA 271.

3. Some of the moneys paid into Court have subsequently been paid out of court, including to William Roberts on account of legal costs.  Mr El-Cheikh claims not only that he had a beneficial ownership to the moneys so paid out, but also that William Roberts was aware of his claim to entitlement to some of those moneys, and, in any event, in circumstances where William Roberts was aware of the Court of Appeal proceedings, it being the solicitors on record for Ms Miraki in those proceedings.  William Roberts were and are the solicitors on record for Ms Miraki in these proceedings.  Mr El-Cheikh says this Court ought never have paid out the moneys, in accordance with consent orders of the parties, and that there was a procedure which should have been followed, including that the Court should have been informed of Mr El-Cheikh’s claim to the moneys which had been paid into Court. 

4. As intervenor, Mr El-Cheikh seeks to join William Roberts as a respondent. There was a debate as to whether r 9.05 of the Federal Court Rules 2011 (Cth) could apply in these circumstances – as to which see: McAlister v New South Wales (2014) 223 FCR 1; [2014] FCA 702; Dauguet v Centrelink [2015] FCA 395; Karellas Investments Pty Ltd v FW Projects Pty Limited (in liq) [2021] FCA 870 at [23] and [25] per Cheeseman J. It is unnecessary to decide that question. Rule 1.32 of the Federal Court Rules gives the Court power to join William Roberts as a party in circumstances such as this. Whether or not it is necessary to have regard to the terms of r 9.05 in applying r 1.32, it is preferable that William Roberts be joined as a party so that it is bound by the orders of the Court, it having received some of the moneys which have been paid out, and it being a “person whose cooperation might be required to enforce a judgment” – see r 9.05(1)(b)(i).

5. For those reasons, I make an order under r 1.32 that William Roberts be joined as a respondent to these proceedings.

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

Associate:

Dated:       15 December 2021