FEDERAL COURT OF AUSTRALIA Deputy Commissioner of Taxation v Australian Securities and Investments Commission; in the matter of Civic Finance Pty Limited (Deregistered) (No 2) [2010] FCA 1476 Citation: Deputy Commissioner of Taxation v Australian Securities and Investments Commission; in the matter of Civic Finance Pty Limited (Deregistered) (No 2) [2010] FCA 1476 Parties: DEPUTY COMMISSIONER OF TAXATION v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION File number(s): NSD 41 of 2010NSD 44 of 2010 Judge: JAGOT J Date of judgment: 17 December 2010 Catchwords: PRACTICE AND PROCEDURE – application for stay pending outcome of appeal. Legislation: Federal Court of Australia Act 1976 (Cth) Cases cited: HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169; [2002] FCA 1638 Date of hearing: 17 December 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 6 Counsel for the Plaintiff: Mr M L Brabazon SC and Mr A J O'Brien Solicitor for the Plaintiff: ATO Legal Services Branch Counsel for the Defendant: The Defendant did not appear Counsel for Gary Binetter: Ms R Seiden and Mr M J Leighton-Daly Solicitor for Gary Binetter: Argyle Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 41 of 2010 in the matter of civic finance pty limited (deregistered) BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Defendant JUDGE: JAGOT J DATE OF ORDER: 17 DECEMBER 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Execution of the judgment of 16 December 2010 be stayed for a period of 21 days from that date in order to enable the former director, Gary Binetter, to file and serve an application for leave to appeal and to be joined as a party to any appeal. 2. If such an application for leave to appeal and/or be joined as a party is filed within the 21 day period referred to in order 1 above, extend the stay until 4.00pm on the day of the first return of the said application before the Court. 3. Costs of the notice of motion filed in court on 17 December 2010 be reserved. 4. The former director, Gary Binetter, pay the plaintiff's costs of the proceeding, as agreed or taxed. Note: the undertaking of the former director, Gary Binetter, to the Court to proceed expeditiously with any application for leave to appeal and appeal if leave is granted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 44 of 2010 in the matter of ADVANCE FINANCES pty limited (deregistered) BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Defendant JUDGE: JAGOT J DATE OF ORDER: 17 DECEMBER 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Execution of the judgment of 16 December 2010 be stayed for a period of 21 days from that date in order to enable the former director, Gary Binetter, to file and serve an application for leave to appeal and to be joined as a party to any appeal. 2. If such an application for leave to appeal and/or be joined as a party is filed within the 21 day period referred to in order 1 above, extend the stay until 4.00pm on the day of the first return of the said application before the Court. 3. Costs of the notice of motion filed in court on 17 December 2010 be reserved. 4. The former director, Gary Binetter, pay the plaintiff's costs of the proceeding, as agreed or taxed. Note: the undertaking of the former director, Gary Binetter, to the Court to proceed expeditiously with any application for leave to appeal and appeal if leave is granted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 41 of 2010 in the matter of civic finance pty limited (deregistered) BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Defendant IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 44 of 2010 in the matter of ADVANCE FINANCES pty limited (deregistered) BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Defendant JUDGE: JAGOT J DATE: 17 DECEMBER 2010 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is a notice of motion in which the former director, Gary Binetter, seeks orders: 1. That leave be granted to have Gary Binetter joined as a party appellant to an appeal. 2. That execution of the Judgment [delivered 16 December 2010] be stayed pending the determination of any appeal. … 2 I accept the submission of the Deputy Commissioner of Taxation (the Commissioner) that there is a procedural difficulty with order 1, insofar as it seeks leave for Mr Binetter to be joined as a party appellant to an appeal. It seems to me that Mr Binetter needs leave as a non-party to appeal from my orders of 16 December. That would involve an exercise of appellate jurisdiction pursuant to s 25 of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal and joinder as a party to the appeal is to be heard and determined by a single Judge (ss 25(2) and 25(2B)(a) of the Act). However, a single Judge can direct that the application be heard and determined by a Full Court as contemplated by ss 25(2)(e) and 25(2BB) of the Act. 3 Order 2 in the notice of motion seeks a stay of execution of the judgment pending the determination of any appeal. I accept the Commissioner's submission that a stay pending the determination of any appeal is inappropriate at this stage. No application for leave to appeal has been filed. Accordingly, it is difficult to assess the issue of whether there is an arguable ground of appeal particularly having regard to the nature of the issues in dispute which form the subject of my reasons for decision (which largely turned on discretionary factors). 4 Be that as it may, I am satisfied that it is in the interests of justice and necessary that there be a stay for the period of 21 days to enable Mr Binetter to make the application for leave to appeal and a period thereafter to allow the application to come before the Court again (at which time the Judge determining the application for leave to appeal may consider whether a further stay is appropriate in light of all the circumstances at that time). 5 I do not accept the Commissioner's submission that Mr Binetter's reasons for a stay are inadequate and that any stay would cause a corresponding disadvantage to the Commissioner. It seems to me that in circumstances where my orders contemplate not merely a winding up but the reinstatement of the companies in order that the winding up take place, the discretionary considerations are quite different from those in HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169; [2002] FCA 1638. The companies in this case are not presently trading. The entirety of the issues associated with their reinstatement has taken some time to come to a head. In these circumstances I can see no real prejudice to the Commissioner if there is a relatively short stay to enable Mr Binetter to make whatever application he sees fit in respect of leave to appeal. 6 Accordingly, I am minded to grant a stay, the terms of which can now be determined in consultation with the parties. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 17 January 2011