SNX Pty Ltd v Commissioner of Taxation [2024] FCA 1270

Federal Court of Australia

SNX Pty Ltd v Commissioner of Taxation [2024] FCA 1270 File number(s): NSD 685 of 2021

Judgment of: THAWLEY J

Date of judgment: 4 November 2024

Catchwords: PRACTICE AND PROCEDURE – where respondent applies for interlocutory orders seeking examination regarding compliance with subpoenas by subpoenaed persons – where the respondent has sufficient cause for wishing to test the sufficiency of the subpoenaed person's compliance with the subpoena – relief granted

Legislation: Federal Court of Australia Act 1976 (Cth)

Cases cited: Quach v Vu [2009] NSWSC 131

Division: General Division

Registry: New South Wales

National Practice Area: Taxation

Number of paragraphs: 7

Date of hearing: 4 November 2024

Counsel for the Applicant: Mr K Josifoski

Solicitor for the Applicant: Fortis Law

Counsel for the Respondent: Ms A Wilson

Solicitor for the Respondent: McInnes Wilson

ORDERS NSD 685 of 2021

BETWEEN: SNX PTY LTD Applicant

AND: COMMISSIONER OF TAXATION Respondent

order made by: THAWLEY J DATE OF ORDER: 4 NOVEMBER 2024

THE COURT ORDERS THAT:

Examination of Subpoenaed Persons

1. Each of the persons listed in Schedule 1 (each a subpoenaed person) attend before a Registrar of the Court at a date or time to be fixed, for the purpose of being examined in respect of the subpoena to produce documents issued on 2 April 2024 to that subpoenaed person. 2. Order 1 is made without prejudice to any claim for legal professional privilege or privilege against self-incrimination which may be made by a subpoenaed person. 3. None of the evidence given in any such examination be accepted as evidence at the final hearing of these proceedings or in any proceeding for contravention or failure to comply with any of the subpoenas. 4. A copy of the following documents be served on each of the persons listed in Schedule 1 by 5:00pm on 11 November 2024: (a) the interlocutory application filed 29 October 2024; (b) the affidavit of Liliia Samysheva affirmed 29 October 2024; (c) Exhibit 1; (d) these orders; and (e) a copy of the reasons for judgment given in relation to these orders; (together, the Documents). 5. The respondent pay the reasonable costs of attendance and of the examination of each of the subpoenaed persons. 6. Reserve liberty to each of the subpoenaed persons to apply to set aside Order 1, such liberty to be exercised within 14 days of service or substituted service of these orders. 7. The costs of the interlocutory application filed on 29 October 2024 be costs in the cause. Substituted Service Najib (Jimmy) Nehme 8. Pursuant to rule 17.03 of the Federal Court Rules 2011 (Cth) (the Rules), service of the Documents pursuant to order 4 be effected on Najib (Jimmy) Nehme (Mr J Nehme) by: (a) sending the Documents by email to the email address used by Mr J Nehme to communicate with this Court's registry on 21 May 2024, being "europeanmotori@live.com.au"; or (b) handing the Documents to any person over the age of 16 years old at 131 Fairford Road, Padstow NSW 2211 (Padstow Address); (c) if 8(b) is not possible: (A) leaving the Documents affixed to the front gate or letterbox at the Padstow Address in a sealed envelope addressed to Mr J Nehme; (B) posting a copy of the Documents by pre-paid Express Post to Mr J Nehme at the Padstow Address; and (C) contacting Mr J Nehme by sending a text message to him on 0406 100 000 stating: "You have been sent court documents in relation to proceedings filed against you. Please check the Padstow Address. If you wish to discuss please contact Lila Samysheva on (03) 9613 0900". 9. The Documents are taken to have been served at the time substituted service has been effected in accordance with Order 8. Elias Nehme 10. Pursuant to rule 17.03 of the Rules, service of the Documents pursuant to order 4 be effected on Elias Nehme (Mr E Nehme) by: (a) sending the Documents by email to the email address used by Mr E Nehme to communicate with this Court's registry on 21 May 2024, being "europeanmotori@live.com.au"; or (b) by handing the Documents to any person over the age of 16 years old at the Padstow Address; and (c) if 10(b) is not possible: (A) leaving the Documents affixed to the front gate or letterbox at the Padstow Address in a sealed envelope addressed to Mr E Nehme; and (B) posting a copy of the Documents by pre-paid Express Post to Mr E Nehme at the Padstow Address. 11. The Documents are taken to have been served at the time substituted service has been effected in accordance with Order 10. Rami Younes 12. Pursuant to rule 17.03 of the Rules, service of the Documents pursuant to order 4 be effected on Rami Younes (Mr Younes) by: (a) sending the Documents by email to the email address used by Mr Younes to communicate with this Court's Registry on 12 July 2024, being "rami80@live.com.au"; or (b) handing the Documents to any person over the age of 16 years old at 56 Christian Road, Punchbowl NSW 2196 (Punchbowl Address); and (c) if 12(b) is not possible: (A) leaving the Documents affixed to the front gate or letterbox at the Punchbowl Address in a sealed envelope addressed to Mr Younes; (B) posting a copy of the Documents by pre-paid Express Post to Mr Younes at the Punchbowl Address; and (C) contacting Mr Younes by sending a text message to him on 0432 444 443 stating: "You have been sent court documents in relation to proceedings filed against you. Please check the Punchbowl Address. If you wish to discuss please contact Lila Samysheva on (03) 9613 0900." 13. The Documents are taken to have been served at the time substituted service has been effected in accordance with Order 12. Mohamad Harmouche 14. Pursuant to rule 17.03 of the Rules, service of the Documents pursuant to order 4 be effected on Mohamad Harmouche (Mr Harmouche) by: (a) serving the Documents on Mr Raed Rahal, a legal representative of Mr Harmouche in employ of Cambridge Law, by email to the email address used by Mr Rahal to communicate with this Court's Registry on behalf of Mr Harmouche on 28 May 2024, being "raedr@cambridgelaw.com.au" and providing Mr Rahal with 24 hours to confirm with the respondent's solicitors that he is instructed to accept service (Service Confirmation); (b) if Service Confirmation is not received, then: (i) by handing the Documents to any person over the age of 16 years old at 7 Kawana Street, Bass Hill NSW 2197 (Bass Hill Address); and (ii) if 14(b)(i) is not possible: A. leaving the Documents affixed to the front gate or letterbox at the Bass Hill Address in a sealed envelope addressed to Mr Harmouche; and B. posting a copy of the Documents by pre-paid Express Post to Mr Harmouche at the Bass Hill Address. 15. The Documents are taken to have been served at the time substituted service has been effected in accordance with Order 14. Alexandros (Alex) Macris 16. Pursuant to rule 17.03 of the Rules, service of the Documents pursuant to order 4 be effected on Alex Macris (Mr Macris) by: (a) sending the Documents by email to the email address used by Mr Macris to communicate with this Court's registry on 17 May 2024, being "alexmacris@hotmail.com"; or (b) handing the Documents to any person over the age of 16 years old at 39 Captain Pipers Road, Vaucluse NSW 2030 (Vaucluse Address); and (c) if 16(b) is not possible: (A) leaving the Documents affixed to the front gate or letterbox at the Vaucluse Address in a sealed envelope addressed to Mr Macris; (B) posting a copy of the Documents by pre-paid Express Post to Mr Macris at the Vaucluse Address; and (C) contacting Mr Macris by sending a text message to him on 0401 884 477 stating: "You have been sent court documents in relation to proceedings filed against you. Please check the Vaucluse Address. If you wish to discuss please contact Lila Samysheva on (03) 9613 0900". 17. The Documents are taken to have been served at the time substituted service has been effected in accordance with Order 16. Other 18. These orders be entered forthwith. Schedule 1 Person 1 Nick Papalexandris Person 2 Brett Hogden Person 3 Terence McNamara Person 4 Proper Officer, Tenjay Pty Ltd Person 5 Elias Nehme Person 6 Najib Nehme Person 7 Alexandros Macris Person 8 Mohamad Harmouche Person 9 Ross Pendergast Person 10 Rami Younes Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.