Miraki v El-Cheikh

Case [2022] FCA 1570


FEDERAL COURT OF AUSTRALIA

Miraki v El-Cheikh [2022] FCA 1570

Leave to Appeal from: Deputy Commissioner of Taxation v Miraki (Funds Paid out of Court) [2022] FCA 392
File number: NSD 366 of 2022
Judgment of: HESPE J
Date of judgment: 22 December 2022
Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – where primary judge made interlocutory orders setting aside orders for the payment of moneys out of court – whether decision of primary judge attended with sufficient doubt – whether substantial injustice would result from refusal to grant leave
Legislation: Federal Court Rules 2011 (Cth) r 39.05
Cases cited:

Bellamy’s Australia Limited v Basil [2019] FCAFC 147; (2019) 372 ALR 638

Bou-Simon v Attorney-General (Cth) [2003] FCA 1303; (2003) 133 FCR 230

CCGF Holdings Pty Ltd v Coegi Group Pty Ltd [2020] FCA 1402

Deputy Commissioner of Taxation v Hua Wang Bank Berhad (No 2) [2010] FCA 1296

Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96

Deputy Commissioner of Taxation v Miraki (Freezing Orders) [2021] FCA 1367

Deputy Commissioner of Taxation v Miraki(Funds Paid out of Court) [2022] FCA 392

Deputy Commissioner of Taxation v Miraki (Summary Judgment) [2021] FCA 1361

El‑Cheikh v Miraki (No 2) [2022] NSWCA 6

Elvin v Fair Work Ombudsman [2022] FCA 881

GPV18 v Minister for Home Affairs [2020] FCA 393

House v The King (1936) 55 CLR 499

JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501

Nationwide News Pty Limited v Rush [2018] FCAFC 70

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 513

Zoo Sport (Europe) Ltd v Zoo International Pte Ltd (No 2) [2020] FCA 755

Division: General Division
Registry: New South Wales
National Practice Area: Taxation
Number of paragraphs: 35
Date of hearing: 9 December 2022
Counsel for the Applicant: Mr D McGovern SC with Mr D Allen
Solicitor for the Applicant: Kekatos Lawyers
Counsel for the First Respondent: Mr M Condon SC
Solicitor for the First Respondent: Cornwalls
Counsel for the Second Respondent: Mr R Raffell
Solicitor for the Second Respondent: HWL Ebsworth Lawyers

ORDERS

NSD 366 of 2022
BETWEEN:

SEPIDEH MIRAKI

Applicant

AND:

OMAR EL-CHEIKH

First Respondent

DEPUTY COMMISSIONER OF TAXATION

Second Respondent

ORDER MADE BY:

HESPE J

DATE OF ORDER:

22 DECEMBER 2022

THE COURT ORDERS THAT:

1.Leave be granted to extend the time for filing of the application for leave to appeal.

2.The application for leave to appeal be dismissed with costs.

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


REASONS FOR JUDGMENT

HESPE J:

  1. The applicant, by an application dated 16 May 2022, applies for an extension of time to seek leave to appeal against orders made on 13 April 2022 and 2 May 2022 by the primary judge pursuant to r 39.05 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) and for the reasons set out by his Honour in Deputy Commissioner…

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AGLC
Miraki v El-Cheikh [2022] FCA 1570
Case
[2022] FCA 1570
Decision Date

CaseChat Overview and Summary

Miraki v El-Cheikh is a case before the Federal Court where Miraki sought leave to appeal from interlocutory orders made by Thawley J, setting aside consent orders for the payment of moneys out of court. These orders were related to transfer duty payable to Revenue NSW and legal costs incurred by Miraki in connection with her dispute with the Commissioner of Taxation. The appeal sought to set aside three orders made by Thawley J on 13 April 2022 and 2 May 2022. The first order set aside the consent orders for the payment of moneys paid into Court on account of transfer duty and legal costs. The second order required Miraki to pay back into Court the amount paid out on account of the transfer duty. The third order required Miraki and her then solicitors to pay El-Cheikh’s costs of interlocutory applications dated 9 November 2021 and 1 December 2021.

The court was required to decide whether the decision of the primary judge was attended with sufficient doubt and whether substantial injustice would result from refusal to grant leave. The court held that the decision of the primary judge was not attended with sufficient doubt. The practical effect of the orders now sought to be set aside was to require Miraki to pay money back into Court, but no prejudice was thereby suffered: the money would simply remain in Court to await final determination of the proceedings before the primary judge. In so far as the first order now sought by Miraki is concerned, the orders made on 13 April 2022 set aside orders for the payment of moneys to cover Miraki’s legal costs in connection with her taxation dispute to be paid into her then acting lawyers’ trust account and to cover transfer duty payable to the Revenue NSW by direct transfer to an account in the name of “OSR EPS Tax Remitting Account”. Following the orders of 13 April 2022 and 2 May 2022, the solicitors acting for Miraki at the time paid back into Court the moneys that had been paid into their trust account. The court also held that no substantial injustice would result from refusal to grant leave. The court noted that the orders made by Thawley J set aside a consent order providing for moneys the subject of a freezing order to be paid out of Court. Absent that consent order, the moneys would have remained subject to the freezing order and the control of the Court.

The court dismissed the application for leave to appeal with costs. The court granted leave to extend the time for filing of the application for leave to appeal.

Orders

Orders of the court

1. Leave be granted to extend the time for filing of the application for leave to appeal.

2. The application for leave to appeal be dismissed with costs.

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

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

By the conclusion of the hearing of the application for leave, the applicant maintained the following pleas for relief:(1)Order 1 made on 13 April 2022 be set aside. The effect of Order 1 made on 13 April 2022 was to set aside the consent orders for the payment out of moneys paid into Court on account of transfer duty payable to Revenue NSW and legal costs incurred by the applicant in connection with her dispute with the Commissioner of Taxation.(2)Order 1 made on 2 May 2022 be set aside. The effect of Order 1 made on 2 May 2022 was to require the applicant to pay back into Court the amount paid out on account of the transfer duty.(3)Order 3 made on 2 May 2022 be set aside. The effect of this order was to require the applicant and her then solicitors to pay Mr El‑Cheikh’s costs of interlocutory applications dated 9 November 2021 and 1 December 2021.(4)The first respondent pay the costs of the application for leave to intervene.(5)The respondents pay the costs of the Appeal.CONSIDERATION No Substantial Injustice Leaving to one side the issue of whether the decision in respect of the orders sought to be appealed from is attended with sufficient doubt, I am not satisfied that substantial injustice would result if leave were refused. The orders made by Thawley J set aside a consent order providing for moneys the subject of a freezing order to be paid out of Court. Absent that consent order, the moneys would have remained subject to the freezing order and the control of the Court. The practical effect of the orders now sought to be set aside was to require the applicant to pay money back into Court. No prejudice is thereby suffered: the money will simply remain in Court to await final determination of the proceedings before the primary judge. In so far as the first order now sought by Ms Miraki is concerned, it is noted that the orders made on 13 April 2022 set aside orders for the payment of moneys to cover Ms Miraki’s legal costs in connection with her taxation dispute to be paid into her then acting lawyers’ trust account and to cover transfer duty payable to the Revenue NSW by direct transfer to an account in the name of “OSR EPS Tax Remitting Account”. Following the orders of 13 April 2022 and 2 May 2022, the solicitors acting for Ms Miraki at the time paid back into Court the moneys that had been paid into their trust account. The solicitors who repaid the moneys following the orders of April and May 2022 were not parties to this application for leave to appeal. Ms Miraki provided no evidence demonstrating that the order requiring her then solicitors to repay moneys received by them in their trust account on account of her legal costs resulted in significant financial hardship to her. In so far as the second order sought by Ms Miraki is concerned, Ms Miraki did not contend, or provide evidence to the Court demonstrating, that the requirement for her to pay the moneys back into Court in a sum equal to those that had been paid to Revenue NSW would cause her significant financial hardship. The evidence before the Court is that, as at June 2022, she had over $6.9m in net assets, although assets to the value of $5,844,558.03 are subject to a freezing order.