Federal Court of Australia

Widdup v Deputy Commissioner of Taxation [2023] FCAFC 145

ORDERS

THE COURT ORDERS THAT:

1.    Application for leave to appeal be dismissed.

2.    The applicants pay the respondents’ costs, of and incidental to the application, to be fixed in a lump sum by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

Ex tempore, revised

THE COURT:

Introduction

1    The applicants seek leave to appeal orders of Wigney J made 27 April 2023 by which his Honour dismissed their interlocutory application dated 29 August 2022 to have money that they paid into court paid out of court. The application for leave to appeal was referred to a Full Court for hearing.

2    The applicants’ interlocutory application before the primary judge arose in the following circumstances. On 21 June 2022, the Deputy Commissioner of Taxation commenced a proceeding by originating application seeking judgment against the first and second applicants (Mr Widdup, and Mrs Widdup) in respect of claimed taxation liabilities. The claimed liabilities included: (a) amounts of $3,599,409.00 owing by each of Mr and Mrs Widdup on account of family trust distribution tax (FTDT) in respect of the year ended 30 June 2018; (b) alternative claims of income tax liabilities of $1,785,073.69 against Mr Widdup, and $1,795,866.55 against Mrs Widdup in respect of the year ended 30 June 2018; (c) general interest charges; and (d) administrative penalties. Mr and Mrs Widdup subsequently filed notices of objection.

3    On the day the proceeding was filed, the Deputy Commissioner applied to the Court ex parte for freezing orders against the applicants. Nicholas J, as duty judge, made freezing orders substantially in the usual form. Nicholas J also made the originating application and the further hearing of the interlocutory application returnable before the duty judge on 29 June 2022.

4    No further hearing of the interlocutory application for the freezing orders took place. Instead, on 29 June 2022 the freezing orders were extended by consent until further order. Subsequently, on 1 August 2022 the sum of $4,810,316.34 was paid into court on behalf of the applicants, which had the effect, by the terms of the freezing orders, of discharging them.

5    On 25 July 2022, Mr and Mrs Widdup filed a cross-claim. By their statement of cross-claim they allege that the Deputy Commissioner “either knows or can be taken to know” that she lacked the power to impose liability upon them for FTDT, and that the issue of the notices for FTDT was not a bona fide exercise of power. These claims involve allegations of misfeasance and maladministration.

6    The hearing of the claim and the cross-claim is currently fixed for 5 February 2024 upon a five day estimate, and an interlocutory hearing has been fixed for two days over 31 October and 1 November 2023 for the purpose of resolving evidentiary objections.

7    Most recently, on 22 August 2023, Wigney J made orders by consent on “a non-admissions basis” that the amount of $2,945,254.97 be paid out of court to the Deputy Commissioner in discharge of the income tax liability of Mrs Widdup set out in the notice of amended assessment for the year ended 30 June 2018, together with interest and penalties. The balance of the sum paid into court remains in court.

Background

8    The claimed taxation debts that are the subject of the Deputy Commissioner’s claims are alleged to have arisen in the following circumstances.

9    On 21 June 2022, the Deputy Commissioner issued to Mr and Mrs Widdup notices of liability for FTDT, notices of amended assessment of income tax, and notices of assessment of shortfall penalty. These notices were accompanied by supporting reasons explaining the basis on which the notices were issued. In broad terms, the Deputy Commissioner determined that the liability for FTDT arose because Mr and Mrs Widdup were directors of a company, JCW Capital Pty Ltd, (Trustee) which was the trustee of the Fidelity Holdings Trust, which was formerly named the J & C Widdup Family Trust. The Trustee was deregistered as a corporation on 15 May 2019. In a tax return for the trust for the tax year to 30 June 2010, the Trustee nominated a family trust election status, noting the year as 2009. The nomination was repeated in the trust’s tax returns for successive years until and including the return for the year ended 30 June 2017. In the return for the year ended 30 June 2018, the family trust election status was left blank. The Commissioner determined that during the 30 June 2018 tax year, and as disclosed in its return, the Trustee allocated a net capital gain on the sale of some shares to the third applicant, Fidelity Pacific Life Insurance Company Limited (Fidelity Pacific), which was incorporated in Canada, and had an office in Port Vila, Vanuatu. Although the return showed an allocation in this manner, bank records showed the payment of moneys initially to Mrs Widdup, and then back and forth between Mrs Widdup, the Trustee, various family members, and a company, FPL Partnership Pty Ltd, which Mr and Mrs Widdup controlled. The net capital gain was not declared in the taxation returns for Mr Widdup or Mrs Widdup for the 30 June 2018 tax year.

10    The claimed liability for FTDT is that for the purposes of s 271-20 of Sch 2F to the Income Tax Assessment Act 1936 (Cth) (ITAA 1936): (1) the Trustee made a family trust election in relation to a trust; (2) the net capital gain was distributed to Fidelity Pacific, which was not an individual specified in the family trust election or a member of the individual’s family group; and (3) Mr and Mrs Widdup, were jointly liable to pay tax, as imposed by the Family Trust Distribution Tax (Primary Liability) Act 1998 (Cth) on the amount of the distribution to Fidelity Pacific. In the alternative, the Commissioner issued the amended assessments of income tax to Mr and Mrs Widdup, bringing into account the capital gain for taxation purposes. The Commissioner also determined that the circumstances were such as to attract penalties which the Commissioner assessed.

11    Before both Nicholas J and Wigney J, the Deputy Commissioner relied on the notices of amended assessment in relation to income tax, and in relation to FTDT, upon notices of liability issued and addressed to each of Mr Widdup and Mrs Widdup as conclusive evidence of the matters stated within them. The notices in relation to FTDT were in similar terms. The FTDT notice to Mr Widdup provided, inter alia –

This notice of liability is issued under section 271-15 of Schedule 2F of the Income Tax Assessment Act 1936 (ITAA 1936).

Pursuant to section 271-90 of Schedule 2F to the ITAA 1936, the following amount of Family Trust Distribution Tax is payable by James Widdup in the capacity as a director of the trustee for Fidelity Holdings Trust.

Period                Tax amount        Due date for payment

year ending 30 June 2018    $3,599,409.00        20 July 2018

As the trustee of the trust is a company, the directors of the company are also part of the trustee group. Persons in the trustee group are jointly and severally liable to pay the Family Trust Distribution Tax.

Julian Widdup in the capacity as a director of the trustee for Fidelity Holdings Trust is liable to pay the general interest charge (GIC) under 271-80 of Schedule 2F to the ITAA 1936 on amounts of Family Trust Distribution Tax that remain unpaid 60 days after the due date. The GIC accrues from the beginning of the 60th day and continues to accrue until the entire amount, including the GIC, has been paid.

12    The applicants do not dispute Mrs Widdup’s liability for the primary tax in the income tax amended assessment issued to her. They dispute the liability for FTDT, interest, and penalties. Putting to one side the effect of the conclusive evidence provision in s 350-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) (TAA), Mr and Mrs Widdup dispute their liability for FTDT on two main grounds. The first ground is that they claim that, notwithstanding the statements on the tax returns from 30 June 2010 to 30 June 2017 indicating to the contrary, the Trustee did not make a family trust election for the purposes of s 271-10 of Sch 2F to the ITAA 1936. There was evidence on the interlocutory application in the form of a transcript that on 22 March 2018 Mr Widdup telephoned the Australian Taxation Office claiming that he had made an error in the trust’s taxation returns in indicating that a family trust election had been made, and sought information as to whether an election had been lodged. Mr Widdup was informed that it did not appear that a family trust election had been received. It was not in dispute that the Australian Taxation Office has no record of a family trust election being lodged in the approved form. The second ground on which liability for FTDT is disputed is that it is claimed that the capital gain upon the sale of the shares was not distributed to Fidelity Pacific, because it is claimed that the Deputy Commissioner accepted that it was paid to Mrs Widdup.

The reasons of the primary judge

13    The main question before the primary judge was whether the moneys paid into court on 1 August 2022 should be repaid to the applicants. The primary judge was not satisfied that the Court should exercise its discretion to order that the moneys paid into court be repaid.

14    Particularly having regard to the manner in which the arguments were presented to the primary judge by the applicants, his Honour approached the exercise of the discretion by first considering whether the freezing orders under which the moneys were paid into Court ought to have been made. The primary judge considered that, in effect, the Deputy Commissioner bore the onus of establishing that there was a proper basis for the making of the freezing orders and that the applicants bore the onus of proving the allegations in the cross-claim brought by Mr and Mrs Widdup.

15    Approaching the matter in this way, the primary judge considered that the following issues were raised by the application for the payment of moneys out of court –

(1)    At the time of the ex parte hearing and at the time of the application before the primary judge, did the Deputy Commissioner have a reasonably arguable case on an existing or prospective cause of action?

(2)    If the moneys paid into court were paid out, was there a danger that a prospective judgment in respect of that cause of action may be wholly or partly unsatisfied because, amongst other things, the assets of the prospective judgment debtor or another person would be removed from Australia or diminished or disposed of in value?

(3)    Did the Deputy Commissioner fail to disclose any material facts or otherwise act in bad faith in applying for the freezing orders ex parte?

(4)    Were there any other considerations weighing in favour of the exercise of the discretion to order the payment out of moneys that had been paid into court?

Good or reasonably arguable case

16    The primary judge considered that the Deputy Commissioner had a good or reasonably arguable case based on a prospective cause of action by reason of the operation of the conclusive evidence provisions in s 350-10 of Sch 1 to the TAA.

17    Consistent with the statement of cross-claim, the applicants submitted to the primary judge that the conclusive evidence provision did not apply to the FTDT notices because they were the product of maladministration, as explained by the High Court in Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146. The FTDT notices were premised on an assumption that a family trust election had been made in accordance with s 272-80 of Sch 2F to the ITAA 1936. On the basis of the facts referred to at [12] above, the applicants submitted that the Deputy Commissioner knew that a family trust election had not been made and that in consequence the FTDT notices had not been issued in good faith.

18    The primary judge considered that the question whether the Trustee had in fact made a valid family trust election was a matter to be resolved in proceedings under Part IVC of the TAA. For the purposes of the interlocutory application before his Honour and based on the evidence as it stood before his Honour, the primary judge was not satisfied that the applicants had established jurisdictional error or conscious maladministration on the part of the Deputy Commissioner in issuing the FTDT notices. Nor was his Honour satisfied that the applicants had a sufficiently strong arguable case on this issue to warrant the repayment of the moneys paid into court. As a result, the Deputy Commissioner could rely upon the conclusive evidence provisions in the context of both the ex parte application for a freezing order and in the context of the application before the primary judge seeking the payment of moneys out of court.

19    As alternatives to the FTDT notices, the Deputy Commissioner had also issued amended assessments for income tax to each of Mr and Mrs Widdup. The amounts assessed under the alternative assessments were less than the amounts payable in respect of FTDT. Because the value of assets sought to be frozen under the freezing orders was capped at the amount of FTDT, the applicants submitted that the freezing orders were only sought in relation to FTDT. The primary judge rejected that submission. Based on his review of the submissions made to the duty judge, the primary judge was satisfied that the freezing orders were sought on the basis of both the FTDT assessment and the alternative assessments for income tax.

20    Mr and Mrs Widdup further contended that because the notices of assessment for income tax had not been served as at the date of the ex parte hearing, there was no prospective cause of action in relation to a debt for income tax as at the date on which the freezing orders had been sought, relying upon the decision in Batagol v Commissioner of Taxation (Cth) [1963] HCA 51; 109 CLR 243 at 252 (Kitto J).

21    The primary judge was satisfied that as at the date of the application for the freezing orders, the Deputy Commissioner had a good arguable case in respect of a prospective cause of action for the recovery of income tax. The Deputy Commissioner had given evidence that the amended assessments had issued and were to be served on the afternoon of the day on which the freezing order application was heard. The primary judge’s approach was consistent with authority: Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; 273 ALR 194; Commissioner of Taxation v Growth Investment Fund SA [2014] FCA 780; 98 ATR 865; Deputy Commissioner of Taxation v Advanced Holdings Pty Ltd [2018] FCA 1263; Deputy Commissioner of Taxation v Shi [2018] FCA 1915; and Deputy Commissioner of Taxation v Wang [2020] FCA 1711. The primary judge was not satisfied that any of those decisions was plainly wrong. Furthermore, by the time of the application before the primary judge, the amended assessments had been served.

Risk of dissipation

22    Although the primary judge did not consider the evidence concerning the risk of dissipation to be strong or compelling, his Honour was satisfied that the circumstantial evidence was sufficient to establish a risk of dissipation that weighed against the exercise of the discretion to order the repayment of the moneys paid into court.

Failure to disclose

23    The primary judge rejected the applicants’ submission that the Deputy Commissioner had failed to disclose material facts on the ex parte hearing for freezing orders. Those material facts had been said to be the absence of the making of a valid family trust election and that no liability for FTDT could exist under the legislation. The primary judge was satisfied that there was no obligation on the Deputy Commissioner to disclose either of these matters. The primary judge was satisfied that the Deputy Commissioner could rely upon the conclusive evidence provisions in the context of the freezing order application, with the result that even if the Deputy Commissioner had erroneously formed the view that a family trust election had been made, the conclusive evidence provisions made the FTDT notices conclusive evidence that the amounts and particulars of the notices were correct.

Balance of convenience and other factors

24    The primary judge was satisfied that the balance of convenience favoured the making of the freezing orders and did not favour the making of an order for the repayment of moneys that had been paid into court. The applicants did not adduce any evidence or advance any other matters that weighed in favour of the exercise of the Court’s discretion.

Conclusive evidence provisions

25    Before turning to the application for leave to appeal, we will refer to the conclusive evidence provision of the TAA that was central to the primary judge’s decision. Section 350-10 of Sch 1 to the TAA sets out a table which provides that the production of specified documents is conclusive evidence of the matters identified. Relevant to the present application is Item 3 of the table, which provides –

26    The reference in column 1 of the table to a notice under s 271-90 of Sch 2F to the ITAA 1936 is to a notice of liability for FTDT in an amount that the Commissioner has ascertained is payable. The exclusion of proceedings under Part IVC of the Act relates to proceedings involving an appeal or a review.

27    The conclusive evidence provisions are part of a scheme under which the lodging of an objection does not defer liability, and a pending review or appeal from an objection decision does not interfere with or affect the recovery of tax in the meantime: TAA, ss 14ZZM, 14ZZR. The apparent asperity of the operation of provisions such as these has been remarked upon: Clyne v Deputy Commissioner of Taxation (1982) 43 ALR 342 at 344 (Mason A-CJ). However, although harsh, the legislative policy to protect the interests of the revenue has long been recognised: see, Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; 237 CLR 473 at [41]-[45] (Gummow A-CJ, Heydon, Crennan and Kiefel JJ) and the cases cited therein. The conclusive evidence provisions cannot, however, be relied upon where there has been deliberate failure of administration by the Deputy Commissioner giving rise to jurisdictional error: Federal Commissioner of Taxation v Futuris Corporation Ltd. This is the substance of the allegations in the cross-claim by Mr and Mrs Widdup.

Leave to appeal

28    The primary judge’s decision was interlocutory, and it concerned a matter of practice and procedure. The applicants therefore face two hurdles. The first is to persuade the Court that leave to appeal should be given pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). A grant of leave to appeal is discretionary. Generally, the Court will take into consideration whether the decision that is impugned is attended with sufficient doubt to warrant its reconsideration on appeal, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The second is that in addressing whether the order is attended with sufficient doubt to warrant its reconsideration, the principles referred to in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 176-177 (Gibbs CJ, Aickin, Wilson and Brennan JJ) will apply. Those principles emphasise the importance of appellate restraint in reviewing on appeal a decision concerning a question of practice and procedure, which will, in turn, inform the question of leave. While the circumstances of different cases are infinitely various, on any appeal itself, the question of injustice flowing from an order that is impugned will generally be a relevant and necessary consideration.

Is there substantial injustice to the applicants?

29    On the question of substantial injustice, the applicants relied on three matters in their application for leave to appeal. The first was that findings made by the primary judge in relation to the applicants’ claims of non-disclosure to Nicholas J, and the entitlement of the Deputy Commissioner to rely upon the conclusive evidence provision in s 350-10 of Sch 1 the TAA, and which were adverse to the applicants, would have a prejudicial effect on their success upon the final hearing of the matter. This claim of prejudice is misconceived. The strength of the claim and the defensive cross-claim were relevant and necessary matters for the primary judge to consider in determining whether, on the basis of the arguments presented by the applicants and the evidence then before the Court, the Court’s discretionary power to release moneys from court to the applicants should be exercised. No issue estoppel arises that could affect the final outcome, and it is abundantly clear that the primary judge’s reasons do not involve a final determination of any issue. It is frequently the position that judges are called upon to determine applications for interlocutory relief prior to trial that might involve an appraisal of the strength of the parties’ claims for final relief, as the facts in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 illustrate.

30    The second matter on which the applicants rely is that they claimed that they were prejudiced by their inability to pay their income tax liabilities to the Deputy Commissioner as a result of the retention of moneys in court. This issue, if it ever had any foundation, falls away as a result of the consent orders made by the primary judge on 22 August 2023 by which it was ordered that moneys be paid out of court in discharge of certain income tax liabilities of Mrs Widdup.

31    The third matter is that Mr and Mrs Widdup claim that they are prejudiced by their inability properly to fund the litigation. There is an insufficient evidentiary foundation for this claim. No affidavit of Mr or Mrs Widdup was read to the Court at the hearing before the primary judge, and no evidence was read to the Court on the applicants’ application for leave to appeal.

Is there any sufficient reason to doubt the correctness of the decision?

32    As to whether the primary judge’s decision is attended with sufficient doubt to warrant a grant of leave to appeal, we are not persuaded that there is sufficient reason to doubt the correctness of his Honour’s decision. The proposed grounds of appeal and the submissions made by the applicants to this Court were lengthy, and convoluted. There were five intertwined threads running through the applicants’ submissions that we address.

33    The first is a submission that the conclusive evidence provision in s 350-10 of Sch 1 to the TAA was not engaged, and could not be relied on by the Deputy Commissioner to support the existence of the FTDT liability independently of proof of the primary facts giving rise to the liability. The basis for that submission in the applicants’ written submissions to this Court was difficult to follow, but was abandoned during the course of the hearing. Another basis on which the submission was maintained and developed in oral argument was that as a matter of construction, Item 3 of s 350-10 of Sch 1 to the TAA did not bring about the result that production of the FTDT notices was conclusive evidence that Mr and Mrs Widdup were liable for the amounts specified in the notices. It was submitted that the notices were no more than evidence that the Deputy Commissioner had formed the opinion that a liability for FTDT arose by operation of s 271-15 of Sch 2F to the ITAA 1936. In response to questions from the Court, counsel for the applicants stated that he was not aware of any authority that supported this submission, and that he had not put the submission to the primary judge. As this is no more than an application for leave to appeal, it is only necessary for us to conclude that the Deputy Commissioner has a good arguable case that s 350-10 of Sch 1 to the TAA is engaged according to its terms, with the result that production of the notices was conclusive evidence that they were properly given, and that the amounts of FTDT stated as being payable by Mr and Mrs Widdup were correct. Putting to one side for the moment the strength or otherwise of the claims made in the cross-claim, we are not persuaded that there is any sufficient reason to doubt the weight that the primary judge gave to the notices as conclusive evidence of the amounts of FTDT that were due.

34    The second thread was that the applicants maintained, as they did before the primary judge, that there was material non-disclosure by the Deputy Commissioner in the ex parte application made to Nicholas J. As explained earlier, this issue was argued before the primary judge as a discretionary reason why the moneys in court should be paid out to the applicants. There were a number of elements to the claim of non-disclosure, but the central element was the accepted knowledge of the Deputy Commissioner that the Australian Taxation Office did not have a record of the trust having lodged a family trust election in the approved form. There is no sufficient reason to doubt the correctness of the primary judge’s rejection of the applicants’ claim of non-disclosure.

35    First, the application for freezing orders was made within the statutory framework where the evidence of liability for FTDT was based upon the conclusive evidentiary effect of the notices. It was not for the Deputy Commissioner to go behind the notices in circumstances where, at least at that point, there was no claim that the giving of the notices was affected by jurisdictional error on the ground of maladministration in the way the applicants now allege. Second, the basis on which the FTDT liability was determined was reasonably transparent. The affidavit evidence filed on behalf of the Deputy Commissioner that was before Nicholas J included the reasons supporting the determination that Mr and Mrs Widdup were liable to pay FTDT. Those reasons included reference to the record of a family trust election in the tax returns for the trust, and stated that the Deputy Commissioner had inferred that Mr Widdup was the individual specified in the election and that members of the Widdup family and companies, trusts and partnerships owned by them comprised the family group. Whether the Trustee ever made a family trust election is an issue that the applicants contest. And whether there is any requirement under the legislation to give the Commissioner a family trust election in the approved form is also an issue that is contested. In the context of the conclusive evidence provisions on which the Deputy Commissioner relied, and the fact that the Deputy Commissioner’s supporting reasons for the determination that FTDT was owing were in evidence before Nicholas J, we are not persuaded that anything more had to be disclosed.

36    The third thread of the applicants’ argument was a submission that the primary judge had given insufficient weight to the strength of the claims made by the cross-claim that the notices were invalid by reason of maladministration by the Deputy Commissioner. Allegations amounting to misfeasance and maladministration are not lightly to be made, and to the extent that any findings turn upon contested facts, s 140(2) of the Evidence Act 1995 (Cth) would typically be engaged. Upon our review of the material that was before the primary judge, the applicant has not shown that there was any error in the primary judge’s analysis, which rested on a finding made for the purpose of the applicants’ interlocutory application that it was at least open to the Deputy Commissioner to issue the FTDT notices on the basis of the information available at the time, with the consequence that the applicants did not have a good arguable case which would support an order that the moneys be paid out of court.

37    For the purposes of addressing the submissions of the applicant on this application for leave to appeal, we conclude that the Deputy Commissioner has an arguable case that it was open to treat a family trust election as having been made. Section 272-75 of Sch 2F to the ITAA 36 provides that a trust is a family trust at any time when a family trust election is in force in respect of the trust. The requirements for the making of a family trust election are provided for in s 272-80 of Sch 2F. Those requirements include –

(1)    the election must be in writing and in the approved form (s 272-80(2)); and

(2)    the election must specify an individual as the individual whose family group is to be taken into account in relation to the election and must contain such other information as the Commissioner requires (s 272-80(3)).

38    Section 272-80 does not expressly provide that the approved form must be lodged with the Commissioner. The applicants contended, however, that such a requirement was to be inferred from the statutory scheme.

39    The Commissioner has published a form for the making of a family trust election. The applicant contended that it was not open to the Commissioner to infer that an election had been made in the absence of the Trustee lodging the approved form. Reference was made to s 388-50 of Sch 1 to the TAA, which relevantly provides –

(1)    A return, notice, statement, application or other document under a *taxation law is in the approved form if, and only if:

(a)     it is in the form approved in writing by the Commissioner for that kind of return, notice, statement, application or other document; and

(b)     it contains a declaration signed by a person or persons as the form requires (see section 388-75); and

(c)     it contains the information that the form requires, and any further information, statement or document as the Commissioner requires, whether in the form or otherwise; and

(d)     for a return, notice, statement, application or document that is required to be given to the Commissioner—it is given in the manner that the Commissioner requires (which may include electronically).

(1A)     Despite subsection (1), a document that satisfies paragraphs (1)(a), (b) and (d) but not paragraph (1)(c) is also in the approved form if it contains the information required by the Commissioner. The Commissioner must specify the requirement in writing.

(2)     The Commissioner may combine in the same *approved form more than one return, notice, statement, application or other document.

40    We are satisfied that there is an arguable case that the form published by the Commissioner for the making of a family trust election does not need to be given to the Commissioner and that it is sufficient if the Commissioner is notified that a family trust election in the approved form has been made. Particularly in the context of a self-assessment regime, there is an arguable case that by completing the tax return forms published by the Commissioner in a manner consistent with the making of a family trust election, the Commissioner may be notified that a family trust election in the approved form has been made by a trustee.

41    The primary judge emphasised that his Honour’s conclusion did not in any way preclude or inhibit Mr and Mrs Widdup from pursuing the relief sought by them in their cross-claim at the final hearing. A similar observation applies to our own conclusions: notwithstanding our conclusion that no error has been shown in relation to the primary judge’s evaluation of the strength of the cross-claim, it remains open to Mr and Mrs Widdup to pursue the subject matter of their cross-claim at the final hearing, provided that it is on the basis of reasonably available arguments upon proper material.

42    The fourth thread was a submission that, at the time the freezing orders were made by Nicholas J, the notices of amended assessment of income tax had not been served on Mr and Mrs Widdup, and that therefore the liability for income tax had not arisen. The applicants cited Batagol v Federal Commissioner of Taxation, which had been cited to the primary judge, to support a submission that service of the assessments was necessary for the levying of the income tax. So much may be accepted. But the question here was whether, for the purposes of r 7.32 of the Federal Court Rules 2011 (Cth), there was a risk of frustration or inhibition of the Court’s processes because there was a danger that a prospective judgment of the Court would be wholly or partly unsatisfied. As the primary judge noted, the Court has on many occasions granted freezing orders on the basis of amended assessments that have been issued, but not served at the time of the application for the freezing orders: see, the cases cited at [21] above. The applicants submit that those authorities were wrongly decided. For two reasons, it is not necessary to address that submission. The first is that the Deputy Commissioner’s claim for FTDT was a sufficient basis to support the freezing orders made by Nicholas J, and also the dismissal by the primary judge of the applicants’ application for the moneys to be paid out of court. The second reason is that as a result of the consent orders made on 22 August 2023, by which moneys were ordered to be paid out of court in discharge of Mrs Widdup’s income tax liabilities, the argument simply falls away.

43    The fifth thread of the applicants’ argument was directed to the primary judge’s conclusions in relation to the risk of dissipation of assets. The evidence in relation to the risk of dissipation of assets was circumstantial, and the circumstantial facts were referred to and collected in an affidavit that was read to the primary judge on behalf of the Deputy Commissioner. The deponent of that affidavit was also cross-examined by counsel for the applicants on the question of the risk of dissipation. As we have mentioned, no affidavit evidence of Mr or Mrs Widdup was read to the Court below, although some documents were separately tendered.

44    It was submitted to this Court by counsel for the applicants that it was incumbent upon counsel for the Deputy Commissioner to put the case on the risk of dissipation to Mr and Mrs Widdup by way of cross-examination. That submission is misconceived in circumstances where no affidavit of Mr or Mrs Widdup was read with the consequence that there was no evidence-in-chief of any witness for the applicants: see Evidence Act, s 28. Further, the applicants had ample notice of the Deputy Commissioner’s circumstantial case on dissipation, because it was set out in the affidavit that the Deputy Commissioner had filed, and to which the applicants had the opportunity to respond by admissible evidence. The absence of direct admissible evidence from Mr or Mrs Widdup was a feature of the evidence that the primary judge was entitled to take into account.

45    The primary judge accepted the Deputy Commissioner’s concerns about dissipation. Having reviewed the circumstantial evidence for ourselves, it is our view that the risk of dissipation was well open to the primary judge having regard to: (1) the evidence of the complex arrangements in which the appellants entered which on their face were capable of suggesting an intention to conceal their true nature; (2) the fact that the Trustee had been voluntarily deregistered; (3) the involvement of an overseas entity associated with a person previously known to be involved in tax schemes; and (4) the number of transfers of large sums between bank accounts controlled by one or more of the applicants. It was not necessary for the Deputy Commissioner to establish a likelihood of dissipation, but only a risk. The picture painted by the circumstantial evidence supported the existence of such a risk, the magnitude of which was informed by the large sums involved. The submissions by the applicants amounted to no more than pointing to countervailing considerations, which did not demonstrate any error in the primary judge’s evaluation.

Conclusions

46    We are not persuaded that leave to appeal should be given. At a threshold level, we are concerned that the consent orders made on 22 August 2023 by which some moneys were paid out of court to discharge the taxation liabilities of Mrs Widdup substantially alter the foundation for the application for leave to appeal. We do not understand that the application before the primary judge was argued other than on the basis that the whole of the moneys in court should be paid out to the applicants. Putting that to one side, and on the hypothesis that there is still utility in addressing the application for leave to appeal, we are not satisfied that the applicants have established substantial injustice, and we are not satisfied that the orders of the primary judge are attended with sufficient doubt to warrant a grant of leave to appeal.

47    The application for leave to appeal will be dismissed.

Associate:

Dated:    24 August 2023

SCHEDULE OF PARTIES