Deputy Commissioner of Taxation v Widdup (No 2) [2023] FCA 377

Federal Court of Australia Deputy Commissioner of Taxation v Widdup (No 2) [2023] FCA 377 File number: NSD 466 of 2022

Judgment of: WIGNEY J

Date of judgment: 27 April 2023

Catchwords: PRACTICE AND PROCEDURE – ex parte freezing orders obtained against respondents per rr 7.32 and 7.35 of Federal Court Rules 2011 (Cth) – where respondents paid money into Court to discharge freezing orders – application for repayment of money paid into Court – whether applicant had a good or reasonably arguable case based on a prospective cause of action – whether there was risk of asset dissipation that may defeat prospective judgment – whether balance of convenience favoured the making of the orders TAXATION – freezing orders based on first and second respondents' family trust distribution tax and income tax liabilities – challenge to applicant's reliance on conclusive evidence provision in s 350-10 of sch 1 to Tax Administration Act 1953 (Cth) – argument of conscious maladministration and jurisdictional error as recognised in Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 – whether there was material non-disclosure at the ex parte hearing

Legislation: Constitution Evidence Act 1995 (Cth) s 50 Family Trust Distribution Tax (Primary Liability) Act 1998 (Cth) Federal Court of Australia Act 1976 (Cth) s 23 Income Tax Assessment Act 1936 (Cth) ss 170(1), sch 2, ss 271-15, 271-15(1), 271-80, 271-90, 271-105, 272-75, 272-80, 272-80(1), 272-80(2), 272-80(3) Judiciary Act 1903 (Cth) ss 39B, 78B Tax Administration Act 1953 (Cth) sch 1, ss 284-75(1), 350-10, 388-50(1), 388-50(1A) Federal Court Rules 2011 (Cth) rr 2.42, 2.43, 7.32, 7.33, 7.34, 7.35