Federal Court of Australia

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

ORDERS

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.

Associate:

Dated:    15 December 2021