Nicols as trustee of the bankrupt estate of Manietta v Manietta, in the matter of Manietta [2022] FCA 39

FEDERAL COURT OF AUSTRALIA

Nicols as trustee of the bankrupt estate of Manietta v Manietta, in the matter of Manietta [2022] FCA 39 File number: NSD 614 of 2020

Judgment of: CHEESEMAN J

Date of judgment: 31 January 2022

Catchwords: PRACTICE AND PROCEDURE – competing interlocutory applications in relation to freezing orders – respondents seek discharge of two freezing orders made by consent and without admission on 19 August 2020 – applicant seeks additional freezing orders be made over property not previously restrained – where applicant argues the superannuation fund of which the bankrupt and his wife were members was constituted and/or operated as a sham – whether the applicant bears the onus in relation to the application to discharge extant freezing orders - whether the applicant has a good or reasonably arguable case – whether there exists a risk of dissipation – whether the balance of convenience favours the making of freezing orders – Held: application to discharge extant freezing orders unsuccessful - application for additional freezing orders successful

Legislation: Federal Court of Australia Act 1976 (Cth), s 23 Income Tax Assessment Act 1997 (Cth), s 295-95 Income Tax Rates Act 1986 (Cth), s 26 Superannuation Industry (Supervision) Act 1993 (Cth), ss 10, 19, 35B, 35C, 42A, 66, 70B, 70C, 70D, 71, 83, 120 Federal Court Rules 2011 (Cth), r 7.32

Cases cited: Basi v Namitha Nakul Pty Ltd [2019] FCA 743 Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961 Brimaud v Honeysett Instant Print Pty Ltd [1988] 217 ALR 44 Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 Curtis v NID Pty Ltd [2010] FCA 1072 Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; (2010) 273 ALR 194 Deputy Commissioner of Taxation v Greenfield Electrical Services Pty Ltd (2016) 103 ATR 327; [2016] FCA 653 Frigo v Culhaci [1998] NSWCA 88 Guo v Xu [2021] NSWSC 460 Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226 Millar v Federal Commissioner of Taxation [2016] FCAFC 94; (2016) 243 FCR 302 Patterson v BTR Engineering (1989) 18 NSWLR 319 Raftland Pty Ltd v Federal Commissioner of Taxation [2006] FCA 109; (2017) ALR 598 Raftland Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2008] HCA 21; (2018) 238 CLR 516 Rambaldi (Trustee) v Sumpton [2021] FCA 1199 Scott v Federal Commissioner of Taxation (Cth) (No 2) (1966) 40 ALJR 265 Skyworks NSW Pty Ltd v 32 Drummoyne Pty Ltd [2017] NSWSC 343 Victoria University of Technology v Wilson [2003] VSC 299 Warner-Lambert Company LLC v Apotex Pty Ltd [2014] FCAFC 59; (2014) 311 ALR 632 Warringah Shire Council v Industrial Acceptance Corp (unreported, 40 SC(NSW), McLelland J, 22 November 1979) Webster v Super Smart Strategies Pty Ltd; Courtney v Super Smart Strategies Pty Ltd [2017] NSWSC 531