Federal Court of Australia

Deputy Commissioner of Taxation v Miraki (Application to Amend) [2021] FCA 1362

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the respondent to file and rely upon an amended interlocutory application in the form provided to the Court on 27 October 2021 as further amended orally during the course of argument on the application for leave to amend, on the undertaking of the respondent’s solicitor to file an electronic copy of that document reflecting the appropriate changes by 5.00pm on 29 October 2021.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

THAWLEY J:

1    There were two interlocutory applications, both dated 10 August 2021, listed for hearing today: one by which the Deputy Commissioner of Taxation sought summary judgment against Ms Miraki and the other by which Ms Miraki sought a number of orders relating to freezing orders which had been made against her. I earlier dealt with the Commissioner’s interlocutory application for summary judgment and granted the Commissioner summary judgment: Deputy Commissioner of Taxation v Miraki (Summary Judgment) [2021] FCA 1361.

2    On the commencement of hearing for the interlocutory application brought by Ms Miraki, she sought leave to amend her interlocutory application in the form provided in a supplementary court book from pages 1725 to 1737. In making submissions for why leave should be granted to rely upon those amendments, Senior Counsel for Ms Miraki outlined the issues which remained in dispute between the parties, and I am approaching the proposed amended interlocutory application on the basis of that identification of the issues.

3    During the course of argument on the application to amend, the parties settled one outstanding issue. That issue concerned legal fees in various proceedings in which Ms Miraki is a party or was otherwise concerned. The result of that agreement having been reached during the course of argument is that the proposed amended interlocutory application is to be further amended by the deletion of words in paragraph 3 of the proposed amended interlocutory application, from b(i), “in these proceedings”, through to the whole of (viii), ending, “76 Alexander Street, Hunters Hill”.

4    The Commissioner objects to certain only of the amendments to the proposed amended interlocutory application. I will address only those amendments to which objection was taken. The Commissioner objects to the amendment proposed to paragraph 1A, which seeks:

An order that the Applicant remove, or cause to be removed, all notifications of the Freezing Order on title to Mrs Miraki’s real property, within 3 days.

5    The Commissioner says that, if he had known that an order in the nature of a mandatory injunction was being sought, he would have made inquiries and adduced evidence in relation to how long it would take to remove the notifications.

6    The interlocutory application – as filed by Ms Miraki on 10 August 2021 – sought, by paragraph 4:

4.     Further, the Freezing Order be discharged unless the Applicant undertakes to the Court:

(a)     Not to notify any bank or other financial institution of these orders without leave of the Court;

(b)     To request the Registrar General of New South Wales to remove all notifications of the Freezing Order on title to Mrs Miraki’s real property;

(c)     Not to request the Registrar General of New South Wales to make any notification of these orders on Mrs Miraki’s real property except for the land comprised in folio identifier 2/DP3354 and known as 76 Alexander Street Hunters Hill.

7    Ms Miraki’s desire to have the notification of the freezing orders on the Register removed was sufficiently brought to the Commissioner’s attention in the interlocutory application as filed to enable the Commissioner to deal with the issue in the amended form now proposed. The question about the number of days which the Commissioner would need to remove the notifications can be further addressed if it becomes necessary to address it, but of itself, is not a reason for not permitting the amendment to be made and relied upon.

8    I note, further, that counsel for Ms Miraki, in their written submissions, put submissions as to the lawfulness of making “notations” on the Register and that the Commissioner included responses to those submissions in his written submissions. For those reasons, I allow Ms Miraki to amend the interlocutory application and rely upon paragraph 1A.

9    The Commissioner’s second objection was to the insertion of the words “and refinancing” and “or refinance” in paragraph 3(c)(ii). I am unable to identify any prejudice that the Commissioner might suffer by the insertion of those words and reliance on them for the purposes of the hearing today. It is preferable, in the interests of efficient court administration and in the interests of expedition and avoiding delay for the parties, for the argument to proceed today. Accordingly, I allow Ms Miraki to amend and rely upon those words in the amended interlocutory application.

10    The Commissioner’s third objection was to paragraph 5A of the proposed amended interlocutory application, which seeks:

In the alternative to prayer 5, the sum of $48,000.00 be paid out from the money in Court to Mrs Miraki to pay Mrs Miraki’s living expenses, in accordance with current order 9(k).

11    Again, I can see no real prejudice to the Commissioner in allowing this amendment and it seems to me preferable that this be dealt with today. Accordingly, I allow Ms Miraki to rely upon the proposed paragraph 5A sought in the amended interlocutory application.

12    I otherwise grant leave for the amended interlocutory application to be filed on the undertaking of Ms Miraki’s solicitor to file an electronic copy of that document reflecting the changes to which I have referred in this judgment. I note: (a) that the amended interlocutory application to be filed needs to reflect the agreement reached between the parties during the course of argument; and (b) that its current form is inaccurate in at least the following respects: first, the word “amended” is not underlined and, secondly, in paragraph 3(c)(ii) the words “and refinancing” are not underlined (and should be).

Associate:

Dated:    4 November 2021