FEDERAL COURT OF AUSTRALIA Caratti v Commissioner of Taxation [2016] FCA 754 File number: NSD 792 of 2016 Judge: ROBERTSON J Date of judgment: 29 June 2016 Catchwords: PRACTICE AND PROCEDURE – application for an interlocutory injunction to restrain the Commissioner from taking recovery action in respect of first applicant's taxation debt – Deed whereby the Commissioner agreed to forbear from undertaking such recovery action in exchange for securities given in accordance with the Deed and on the terms and conditions set out in the Deed – whether applicants had complied with obligations under the Deed – alternatively, if there was an Event of Default, was the Commissioner entitled to exercise his rights to commence recovery action or was a further notice required – whether applicants had shown a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial INCOME TAX – application for an interlocutory injunction to restrain the Commissioner from taking recovery action in respect of first applicant's taxation debt – Deed whereby the Commissioner agreed to forbear from undertaking such recovery action in exchange for securities given in accordance with the Deed and on the terms and conditions set out in the Deed – whether applicants had complied with obligations under the Deed – alternatively, if there was an Event of Default, was the Commissioner entitled to exercise his rights to commence recovery action or was a further notice required – whether applicants had shown a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial HIGH COURT AND FEDERAL COURT – jurisdiction of Federal Court – Judiciary Act 1903 (Cth) s 39B(1) –application for an interlocutory injunction to restrain the Commissioner from taking recovery action in respect of first applicant's taxation debt – Deed whereby the Commissioner agreed to forbear from undertaking such recovery action in exchange for securities given in accordance with the Deed and on the terms and conditions set out in the Deed – whether jurisdiction with respect to any matter in which an injunction is sought against an officer of the Commonwealth – whether jurisdiction in a matter arising under a law made by the Parliament Legislation: Corporations Act 2001 (Cth) s 127 Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A), 78B Taxation Administration Act 1953 (Cth) Part IVC, Sch 1 ss 255-1(1), 255-5, 260-5 Cases cited: Australian Broadcasting Commission v O'Neill [2006] HCA 46; 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 CGU Insurance Limited v Watson (Trustee) in the matter of Greaves [2008] FCA 1104 Laurie v Carroll [1958] HCA 4; 98 CLR 310 LNC Industries v BMW Australia [1983] HCA 31; 151 CLR 575 Date of hearing: 16 June 2016 Date of last submissions: 23 June 2016 Registry: New South Wales Division: General Division National Practice Area: Taxation Category: Catchwords Number of paragraphs: 48 Counsel for the First, Second and Third Applicants: Mr ML Robertson QC with Mr G Antipas Solicitor for the First, Second and Third Applicants: Zafra Legal Counsel for the Respondent: Mr M Brabazon SC with Mr B Le Plastrier Solicitor for the Respondent: Australian Government Solicitor ORDERS NSD 792 of 2016 BETWEEN: ALLEN BRUCE CARATTI First Applicant APPLEY HOLDINGS PTY LTD (ACN 160 806 673) AS TRUSTEE FOR THE BYFORD TRUST Second Applicant PLATINUM SKY PTY LTD (ACN 126 519 935) Third Applicant AND: THE COMMISSIONER OF TAXATION Respondent JUDGE: ROBERTSON J DATE OF ORDER: 29 JUNE 2016 THE COURT ORDERS THAT: 1. On the usual undertaking as to damages given by the applicants to the Court, until further order, the respondent be restrained from taking recovery action as referred to in clauses 6.1, 6.5 and 6.6 of the Deed of Agreement between the parties dated 23 September 2015. 2. The respondent pay the applicants' costs of the interlocutory application, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ROBERTSON J: Introduction 1 By application filed on 26 May 2016, the applicants applied for an interim injunction restraining the respondent, the Commissioner of Taxation (the Commissioner) "from taking recovery action against or in respect of the Applicants on the purported basis that there is an existing Event of Default under the Deed of Agreement between the Applicants and the Respondent dated on or about 23 September 2015 ("the Deed") until further order." 2 Under the Deed, the Commissioner agreed to forbear from undertaking recovery action in respect of the first applicant's taxation debt in exchange for securities given in accordance with the Deed and on the terms and conditions set out in the Deed. 3 The applicants claimed they had complied with their obligations under the Deed, whereas the Commissioner said that they had not. Alternatively, the applicants claimed that if there was an Event of Default as defined in the Deed, the Commissioner was not entitled to exercise his rights to commence recovery action as the requisite notice had not been given under the Deed. The Commissioner denied that construction of the Deed which required him to give a further notice. Jurisdiction 4 I raised with the parties what was said to attract the jurisdiction of the Court in that, although an injunction was sought against an officer of the Commonwealth, the injunction appeared to be sought in aid of a claim having its basis in the Deed. 5 When read with the Deed, and I would so read it, it is arguable that the application seeks to prevent the Commissioner from exercising all his statutory powers of recovery or enforcement under the Taxation Administration Act 1953 (Cth), in respect of Amended Assessments and Penalty Notices for the years of income ended 30 June 2009, 30 June 2010 and 30 June 2011, presently being challenged in proceedings under Part IVC of that Act. On that basis, perhaps the Court would have jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) being jurisdiction with respect to any matter in which an injunction is sought against an officer of the Commonwealth. The difficulty would be whether an injunction would lie under s 75(v) or s 39(B)(1) for non-jurisdictional error, particularly a case that involves claims of breach of the terms of a deed between the applicants and the Commissioner. 6 I prefer to approach the question of jurisdiction on the basis that, as submitted by the Commissioner in supplementary submissions made by leave and dated 20 June 2016, the proceedings are an attempt to prevent the enforcement of rights arising under a Commonwealth statute, especially enforcement by methods provided for in a Commonwealth statute, and this means that there is a matter arising under a law made by the Commonwealth Parliament for the purposes of s 39B(1A)(c): see LNC Industries v BMW Australia [1983] HCA 31; 151 CLR 575 at 581. As submitted by the Commissioner, the combined effect of served notices of assessment and ss 255-1(1) and 255-5 of Sch 1 to the Taxation Administration Act is that there is a debt due to the Commonwealth on the part of the taxpayer, Mr Caratti, which the Commissioner has the right to recover. The applicants fear that the Commissioner may take steps to enforce that right, either by bringing proceedings in the way contemplated by s 255-5(2), or by exercising his other statutory powers under provisions such as s 260-5. The applicants seek to prevent such recovery action. Those submissions were not contradicted by the applicants in their supplementary submissions made by leave and dated 23 June 2016. On that basis I find that the Court has jurisdiction and that the issue of a notice under s 78B of the Judiciary Act is not necessary. Discretionary matter 7 A second matter I raised with the parties was whether the Court should exercise its jurisdiction as a matter of discretion, founded on comity, in light of the fact that the Commissioner had commenced proceedings for the recovery of the outstanding tax debts in the Supreme Court of Western Australia, before the proceedings were commenced in this Court. In CGU Insurance Limited v Watson (Trustee) in the matter of Greaves [2008] FCA 1104, although not necessary for her Honour's decision, Branson J referred, at [16], to the circumstances in which it might be appropriate for this Court, in the interests of justice, to issue an injunction to restrain a litigant from taking steps in Supreme Court proceedings. Her Honour said that considerations of comity between Australian superior courts suggested that an injunction of that kind will not lightly be made. 8 It was common ground between the parties in the present case that the writ filed by the Commissioner in the Supreme Court of Western Australia had not been served and, indeed, that there is an interlocutory order of this Court, by consent, that the Commissioner not serve the writ pending the hearing and determination of the present interlocutory application. On the basis that the mere issue of the writ, without service of it, does not relevantly enliven the jurisdiction of the Supreme Court of Western Australia (see Laurie v Carroll [1958] HCA 4; 98 CLR 310), and on the additional consideration that the Commissioner does not raise this issue of discretion, I proceed to consider the interlocutory application on its merits. The relevant principles 9 In Australian Broadcasting Commission v O'Neill [2006] HCA 46; 227 CLR 57 at [65] Gummow and Hayne JJ set out a statement of the relevant principles concerning when to order an interlocutory injunction. Their Honours said that it was sufficient that the plaintiff in that case show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. With reference to the inquiry as to whether the plaintiff had made out a prima facie case, their Honours approved an observation made by Kitto J in the course of argument in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 at 620 (see also the decision of the Court at 622) that how strong the probability needed to be depended upon the nature of the rights the plaintiff asserted and the practical consequences likely to flow from the order he seeks. 10 I proceed on that basis. Indeed, the present question concerned only the first enquiry, whether the applicants had made out a prima facie case, as the balance of convenience was plainly in their favour. This is because if the present interlocutory application were refused, the application for final relief would have no utility as the Commissioner would be free to take recovery action. I also take into account that the matter is now fixed for final hearing before me on 5 August 2016. The evidence 11 On the present interlocutory application, the following affidavits were read without objection. 12 The applicants read and relied on an affidavit sworn by Mr Darryl Kipping on 26 May 2016, Mr Kipping being a lawyer and director of Torrens Legal. 13 The Commissioner read and relied on an affidavit sworn by Mr John Lynn on 8 June 2016. Mr Lynn is an Executive Level officer employed in the debt section of the Australian Taxation Office (ATO) in Brisbane. Mr Lynn also swore a supplementary affidavit, sworn 15 June 2016, correcting a minor error in his earlier affidavit. The Deed 14 As I have indicated, central to the present dispute is the Deed. 15 The taxpayer, the first applicant, was a party to the Deed as were the second and third applicants as guarantors. 16 The Deed related to the taxpayer's income tax liabilities for the 2009, 2010 and 2011 financial years. The essential features of the Deed were that in exchange for the securities given in accordance with the Deed, the Commissioner agreed to forbear from undertaking recovery action upon the terms and conditions set out in the Deed. 17 "Taxation Debt" was defined in the Deed to mean the amount of $10,948,507.45, comprised of Tax-Related Liability and applicable GIC due and payable by the taxpayer as at 7 August 2015, subject to any adjustment to those amounts by virtue of the determination of the objection process. 18 "Securities" was defined in the Deed to mean the mortgages detailed in Item 1 of Schedule 1, ranking as a second mortgage, subject to any amendment pursuant to the provisions in the Deed concerning Substitute Security, from time to time. In effect this meant the property described as Lot 9005 on Deposited Plan 403852 (Lot 9005). 19 By clause 4.1(f) the taxpayer agreed that where he complied with the terms of the Deed he shall not be subject to recovery action in relation to the unpaid balance of his Taxation Debt until 30 days after the determination of the objection process. 20 By clause 6.1, the Commissioner agreed, subject to clause 11.2, to refrain from commencing any proceedings or employing his statutory "garnishee" power to recover any part of the Taxation Debt. Clause 11.2 provided that upon the occurrence of an Event of Default the Commissioner may, subject to the Notification requirement in clause 11.3, exercise his rights to recover the balance of the Taxation Debt. The notification requirement in clause 11.3 was to the effect that the Commissioner must not exercise his rights to commence recovery action in respect of the balance of the Taxation Debt until he had notified the Taxpayer and/or the Guarantor of the occurrence of an Event of Default and warned them that the Commissioner may elect to exercise his recovery and/or enforcement rights if the Event of Default is not remedied to the Commissioner's satisfaction within 10 business days. 21 "Event of Default" was defined to mean any of the events described as such in the Deed (including those events described in clause 10). I take the reference to clause 10 to be a mistake for clause 11. 22 Clause 6.6 provided that the Commissioner will be entitled to exercise his recovery powers in respect of the Taxation Debt and enforce his rights pursuant to his Securities, as from the eleventh Business Day after he has given notice (in the manner described in clause 11.3) of any Event of Default listed in clause 11.1. 23 The relevant parts of clause 11 on which the Commissioner relies are as follows: 11.1 An Event of Default occurs if any one or more of the following occurs and, with the exception of paragraph (i) for which no notice period is required or (h) which addresses notice periods in that paragraph, is not remedied within ten (10) Business Days of the Taxpayer or Obligor (as the case may be) being notified of the event/matter in writing: (a) The Taxpayer fails to comply with any of their obligations under this Deed; … 11.2 Upon the occurrence of an Event of Default (without in any way limiting any other provision of this Deed) the Commissioner may, in addition to any other powers conferred by this Deed, and subject to the Notification requirement in clause 11.3, exercise his rights to recover the balance of the Taxation Debt. 11.3 The Commissioner must not exercise his rights to commence recovery action in respect of the balance of the Taxation Debt or appoint a receiver to enforce his security until he has Notified the Taxpayer and/or the Guarantor of the occurrence of an Event of Default and warned them that the Commissioner may elect to exercise his recovery and/or enforcement rights if the Event of Default is not remedied to the Commissioner's satisfaction within ten Business Days. I have amended cross references in clause 11.1 as accepted by counsel in the course of the hearing. Brief chronology 24 On 24 March 2016, the ATO received a Valuation Report by Opteon Property Group which the Commissioner had procured pursuant to clauses 3.6(i) and 3.6(j) of the Deed. That Report indicated that Lot 9005 was valued at $1.9 million. By contrast, the Valuation Report provided by the first applicant pursuant to clause 3.6(b) indicated that the property was valued at $11 million. 25 On 30 March 2016, the Commissioner wrote to the first applicant demanding, in accordance with clause 3.6(k), that within 30 days he provide a mortgage over additional property which had an unencumbered value of at least $4.55 million. 26 A mortgage was provided, by a company called by 119 Nicholson Road Pty Ltd, as was a valuation of the additional properties (Lot 819 on Deposited Plan 222474 CT 1647/188 (Lot 819) and Lot 820 on Deposited Plan 22474 CT1647/190 (Lot 820)) as at 29 April 2016 of $4.7 million. 27 I note here that, although under clause 14.14 of the Deed it was stated that time was of the essence in the Deed, on the present interlocutory application the Commissioner took no point about time for compliance with the 30 day period to which I have referred. 28 Clause 3.6(k) deals with the circumstance where a valuation procured by the Commissioner indicated that the valuation of the property was less than the valuation provided by the taxpayer. The difference between the two valuations was $9.1 million. In those circumstances, that clause provided for a written demand from the Commissioner to the taxpayer to provide a mortgage over additional property which had unencumbered equity of at least half the difference between the two valuations. The taxpayer was obliged to do so within 30 days of the written demand. 29 As I have said, the written demand from the Commissioner in this case was dated 30 March 2016 (the March Notice), and required that within 30 days the first applicant provide a mortgage over additional property which has an unencumbered value of at least $4.55 million. 30 On 27 April 2016, Mr Kipping advised the Commissioner by email that Lots 819 and 820 were being offered as additional security. The email stated that the properties were owned by 119 Nicholson Road Pty Ltd. Mr Kipping said that he was instructed that agreement had been reached with the fellow shareholder/director of that company for those properties to be provided as security. 31 The Commissioner said in email correspondence, dated 28 April 2016, that he had serious doubts that those properties were of sufficient value as to provide the required amount of collateral. He said those two properties were already offered as collateral to the first applicant's security deed back in August. They had been rejected on the basis that they had caveats in place which would prevent registration of the Commissioner's mortgages, and that one of them was subject to a seizure order. The email also referred to the writer's concern that the directors of 119 Nicholson Road Pty Ltd did not see eye to eye and that this might cause some difficulty for the Commissioner The Commissioner also expressed doubt that even if the existing encumbrances were removed there would be sufficient equity in those properties to discharge the obligation to provide the required additional $4.55 million of collateral. The email invited the first applicant to offer an alternative property to satisfy the demand made pursuant to clause 3.6 (k). 32 By email dated 5 May 2016, attaching a letter bearing that date, the Commissioner gave notice (the 5 May Notice) that he had determined that there had been an Event of Default pursuant to clause 11.1(a) and clause 11.1(d) of the Deed. (The reference to this latter clause was not pressed in submissions on behalf of the Commissioner.) By that letter, the first applicant was "notified of the Event of Default and, pursuant to Clause 11.3 of the Deed … warned that the Commissioner may elect to exercise his recovery and or enforcement rights if the Event of Default is not remedied to the Commissioner's satisfaction within ten Business Days". The submissions of the parties 33 As I have indicated, the applicants submitted that there has been no Event of Default under the Deed and, in any event, the Commissioner has not complied with the strict notice provisions of the Deed such that it was the Commissioner who breached the terms of the Deed by filing recovery proceedings in the Supreme Court of Western Australia. 34 The applicants also submitted that the taxpayer had complied with clause 3.6(k) because the mortgages proffered over the additional properties had an equity of over $4.55 million as per the valuation by a registered valuer contemplated under the Deed. There was no permission given for the Commissioner to obtain his own valuation. The Deed did not provide for a secondary Compromise Valuation Regime. There was no suggestion that the valuation was not bona fide. Accordingly, the applicants submitted, the Commissioner was bound to accept the additional securities as the compromise that he agreed in the event of a difference between the taxpayer's valuation of the Original Property and the Commissioner's permitted valuation of that property. Thirdly, the applicants submitted, even if the 5 May notice was a notice under clause 11.3, the Commissioner did not have a basis to be reasonably satisfied that the value was less than $4.5 million. The valuation relied on by the Commissioner was outdated, did not address the matters in the valuation provided by the taxpayer and was insufficient for the Commissioner to form the view that the alleged default was remedied by the Commissioner's reasonable satisfaction, as required by clause 11.3 and clause 6.2. 35 The applicants submitted that the contractual regime had not reached a stage which entitled recovery action. The Commissioner, in his March Notice and 5 May Notice impermissibly elided, the applicants submitted, clauses 11.1 and 11.3, which provided for two separate notice periods. The demand under clause 3.6(k) could not also operate as a notice under clause 11.1. That was sufficient to dispose of the case, the applicant submitted. Further, they submitted, the 5 May Notice was ineffective as it incorrectly proceeded on the basis that a notice under clause 11.1 had been given. 36 The Commissioner in his written outline of submissions contended that the interlocutory application should be refused because the applicants had not made out the requisite prima facie case for relief. First, it was submitted that the mortgage over Lots 819 and 820, purported to have been executed by 119 Nicholson Road Pty Ltd in accordance with the Corporations Act 2001 (Cth) s 127, was not so executed, and it was not a mortgage by that company. Secondly, it was submitted that Lots 819 and 820 were trust property in the hands of 119 Nicholson Road Pty Ltd and the applicants had not demonstrated that the company had power to grant the mortgage over that property. The Commissioner did not press his written submission that the mortgage purported to secure the sum of $4.5 million which was $50,000 short of what had to be provided under the Deed. 37 The Commissioner also submitted that the applicants' submission that the Deed required two separate notices, one under clause 11.1, and a second notice under clause 11.3, should be rejected on the basis that the reference to an Event of Default in clause 11.3 was a reference to one of the events specified in clause 11.1(a)-(j). It would make no sense to require two successive failures of notice to remedy a remediable breach. 38 The Commissioner also submitted that the applicants' contention that he was bound to accept the proffered additional securities because the applicants had tendered a valuation by a registered valuer of the subject land which exceeded $4.55 million should be rejected. The Commissioner submitted that what clause 3.6(k) required was actual value, not a mere and unchallengeable certification of value. 39 The Commissioner also submitted that the applicants' contention that he "does not have a basis to be reasonably satisfied that the value [of Lots 819 and 820] is less than $4.5m" appeared to be based on clause 6.2 of the Deed combined with the reference in clause 11.3 to the Commissioner's satisfaction. The Commissioner submitted that this issue fell away without a valid and competent mortgage for the requisite amount. Consideration 40 As to the applicants' second submission, that there had not been an actionable Event of Default as yet, I do not act on the Commissioner's submission that the Court should finally determine the relevant terms of clause 11 of the Deed. I decline to do so because I have heard no more than short argument on an interlocutory hearing. 41 In my opinion, it is arguable that where a taxpayer fails to comply with any of his obligations under the Deed, an Event of Default occurs where the default is not remedied within 10 days of being notified that he has so failed to comply. The Event of Default is the failure to remedy within that period after being so notified and arguably does not occur before that time, that interpretation getting some support from clause 6.6. Clause 11.2 is subject to the Notification requirement in clause 11.3, but that clause arguably may then mean, the Event of Default not having occurred before the failure to remedy within 10 business days, that it is not until then that the Commissioner may notify the taxpayer of the occurrence of the Event of Default, and give the warning referred to in clause 11.3. 42 It was common ground that no "second notice" had been given, the Commissioner's position being, as I have said, that a single notice, including the clause 11.3 warning, sufficed and had been given in this case by the 5 May Notice. 43 In my opinion, the applicants have shown a sufficient likelihood of success on their second submission, see [40]-[42] above, to justify in the circumstances the preservation of the status quo pending the trial, bearing in mind the practical consequences likely to flow from the order the applicants seek. 44 It is not therefore necessary to reach a concluded view on this interlocutory application on the applicants' first submission. As to that submission, that the applicants had complied with the Deed, I will however indicate my tentative view. In my opinion, it turns in the first place on the words "provide a mortgage over additional property which has unencumbered equity of", in this case, $4.55 million. In the correspondence between the parties the issue was whether Lots 819 and 820 answered that description. One issue was the question of value. In my opinion, it is arguable that, as no point as to time was taken on the present interlocutory application, the provision of a valuer's report stating that the combined value of those properties was $4.7 million as at 29 April 2016 meant that the applicants had, thus far, complied with the Deed. It is not necessary, and I do not, for present purposes to go further and consider whether the Commissioner is bound to accept such a valuation, as contended by the applicants on this application, or whether the issue under clause 3.6(k) is one of objective fact, as contended by the Commissioner on this application. 45 As to the first of the additional points made by the Commissioner and summarised at [36] above, in my opinion, it is not one which I should determine on this interlocutory application and where it is not necessary to do so. The point was not raised in correspondence between the parties surrounding the claimed failure to comply with clause 3.6(k) and was raised for the first time by submissions filed at 5 pm on the day preceding the hearing. If the point had been raised earlier, this issue could, perhaps, have been remedied. 46 As to the second of the additional points made by the Commissioner and summarised at [36] above, again, in my opinion, it is not one which I should determine on this interlocutory application and where it is not necessary to do so. The point was not raised in correspondence between the parties surrounding the claimed failure to comply with clause 3.6(k) and was raised for the first time by submissions filed at 5 pm on the day preceding the interlocutory hearing. As submitted by the applicants, the Commissioner refused to take the mortgage for reasons that did not include this argument. Conclusion and orders 47 On the usual undertaking as to damages given by the applicants to the Court, there will be an order, until further order, restraining the respondent from taking recovery action as referred to in clauses 6.1, 6.5 and 6.6 of the Deed of Agreement between the parties dated 23 September 2015. 48 The respondent is to pay the applicants' costs of this interlocutory application, as agreed or taxed. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 29 June 2016