Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Peter Sleiman Investments Pty Limited as trustee for the Sleiman Family Trust v Deputy Commissioner of Taxation [2016] NSWCA 355 Hearing dates: 12 December 2016 Date of orders: 14 December 2016 Decision date: 14 December 2016 Before: McColl JA Decision: See [59] Catchwords: PRACTICE – stay of proceedings – application for stay where winding up order made in favour of Deputy Commissioner of Taxation on basis of applicant's insolvency – where appeal likely nugatory if stay not granted CORPORATIONS – where company wound up in insolvency by reason of tax debt – where tax debt the subject of pending review proceedings in the Administrative Appeals Tribunal – where application to stay winding up order pending determination of appeal PRACTICE - parties – joinder – where applicants for joinder beneficiaries of trust – where order made that trustee of trust be wound up Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Supreme Court Act 1970 (NSW) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 Ashton v Pratt [2013] NSWCA 400 Deputy Commissioner of Taxation (WA) v Australian Machinery and Investment Co Pty Ltd (1945) 3 AITR 236 House v R (1936) 55 CLR 499; [1936] HCA 40 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13 New South Wales Bar Association v Stevens [2003] NSWCA 95 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3 Wells v Wily (2004) 50 ACSR 103; [2004] NSWSC 607 Texts Cited: Jacobs' Law of Trusts in Australia (8th ed, 2016) Category: Principal judgment Parties: Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust (Applicant) Deputy Commissioner of Taxation (Respondent) Representation: Counsel: JC Kelly SC and S Hartford Davis (Applicant) N Cotman SC (Respondent) Solicitors: David Legal (Applicant) Australian Government Solicitor (Respondent) File Number(s): 2016/361909; 2016/369637 Publication restriction: No Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2016] NSWSC 1657 Date of Decision: 24 November 2016 Before: Black J File Number(s): 2016/51682 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. McCOLL JA: On 24 November 2016, Black J made orders that, relevantly, Peter Sleiman Investments Pty Limited (PSI) be wound up in insolvency and Mr David Young be appointed as its liquidator. [1] 2. On PSI's application on 1 December 2016, his Honour granted a stay of his orders until 5pm on 15 December 2016 to permit it to bring a stay application in this Court, together with its substantive appeal against his judgment and any application to join beneficiaries of the unit trusts in the appeal. [2] 3. PSI is trustee for the Sleiman Family Trust (SFT). By Notice of Motion filed on 2 December 2016, it seeks a number of orders. 4. First, PSI and 8 others, variously either individuals or corporate entities said to be beneficiaries of the SFT (beneficiaries), seek an order joining the beneficiaries as appellants pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) 51.4(3), and UCPR 6.24 (the latter applying in this Court by virtue of UCPR 51.1(3)). 5. Secondly, pursuant to s 67 of the Civil Procedure Act 2005 (NSW) and UCPR 51.44, PSI seeks a stay of the primary judge's order appointing a liquidator to it. 6. Thirdly, and in the alternative to the second order sought, PSI seeks an order that the appointment of the liquidator take effect provisionally pending the final hearing and determination of the appeal, and an order that the liquidator exercise no powers or functions affecting PSI's ability to prosecute the appeal. [3] 7. Fourthly, PSI seeks expedition of the hearing of the appeal, pursuant to UCPR 51.60. Background 1. By a summons filed on 17 February 2016, the Deputy Commissioner of Taxation (DCT) commenced proceedings against PSI in its capacity as trustee for the SFT with leave to serve on short notice. 2. On 19 February 2016, White J made freezing orders, by consent, on the terms set out in [3] – [7] of Schedule 1 to the summons (freezing orders). 3. By an Amended Summons dated 12 April 2016, DCT limited its claim to declarations and orders in relation to a claim under s 37A of the Conveyancing Act 1919 (NSW), and for the winding up of PSI in insolvency, in the latter respect asserting that PSI was insolvent on the evidence as to its financial affairs generally. [4] 4. By Cross-Claim and Cross-Summons filed on 10 March 2016, PSI sought a series of declarations that properties were held by it upon nine unit trusts (unit trusts), free of any estate or interest in favour of the beneficiaries of the SFT. Insofar as these declarations were concerned, the proceedings were fought on the basis that PSI sought relief to the opposite effect of the orders urged by DCT on its s 37A case. By its Cross-Summons, PSI also sought the appointment of a new trustee and/or vesting orders in relation to the unit trusts, pursuant to s 70 of the Trustee Act 1925 (NSW), upon the basis that PSI was at imminent risk of being wound up and the freezing orders precluded it from resigning as trustee and appointing new trustees of the unit trusts, as it was otherwise entitled to do under clause 15 of each of the unit trust deeds. 5. The issues in the proceedings were: 1. whether PSI should be wound up on the grounds of insolvency pursuant to s 459A of the Corporations Act 2001 (Cth); 2. whether the re-settlement of the SFT's property assets in favour of nine newly-formed land tax unit trusts, by way of making a number of declarations of trust, was void as an alienation of property with fraudulent intent pursuant to s 37A of the Conveyancing Act, in the context where PSI was the trustee of the unit trusts as well as the SFT, and DCT had earlier issued a number of default and penalty tax assessments to PSI; 3. whether the Court should declare that the nine properties the subject of the impugned declarations of trust were assets of the unit trusts free of any estate or interest in favour of PSI in right of the SFT; 4. whether PSI should be removed as the trustee of seven of the unit trusts under s 70 of the Trustee Act, and new trustees appointed, by reason of the imminent risk of PSI being wound up in insolvency; and 5. whether the Court should defer the making of any order for the winding up of PSI in insolvency by reason of its inability to pay the assessments pending the final hearing and determination of an appeal by PSI to the Administrative Appeals Tribunal (AAT) in relation to the assessments. [5] 1. The primary judge dismissed the s 37A claim, made orders for the winding up of PSI, and declined to make the declarations PSI sought or to appoint new trustees or defer the making of the winding up orders pending the hearing and determination of the AAT appeal. As I have said, on 1 December 2016, his Honour granted a temporary stay of his orders to permit this application to be brought. 2. PSI filed a notice of appeal on 2 December 2016. In addition, PSI has filed a summons seeking leave to appeal, accepting a contention made by the DCT that it was required to do so because Ground 8 of the notice of appeal complaining about the primary judge's refusal to defer the making of the winding up order required leave pursuant to s 101(2)(n) of the Supreme Court Act 1970 (NSW). Statement of the case 1. Needless to say, the factual background is complex. It was summarised in PSI's written submissions by cross-reference to the primary judgment and to the grounds of appeal (PSI summary). Only two aspects of the summary were challenged in the DCT's written submissions. The summary below takes account of the DCT's challenges and also removes pejorative aspects of PSI's summary. 2. PSI was sued in its capacity as the trustee for the SFT. The SFT was established on 14 September 1999 and has at various times held numerous properties, largely in New South Wales. The proceedings principally concerned nine properties held by PSI in its capacity as trustee of the SFT (properties). [6] 3. The sole de jure director of PSI was Mr George Sleiman, who gave evidence in the proceedings. Although this does not appear in the judgment, the sole shareholder of PSI was also Mr George Sleiman. The primary beneficiary of the SFT was Mr Peter Sleiman, who was also the appointor of the trust. [7] 4. On 30 June 2013, following an audit, the DCT issued PSI with notices of assessment of liability to income tax in default of the lodgement of tax returns for the financial years ending 30 June 2008, 30 June 2009 and 30 June 2010, together with administrative penalties, totalling $7,113,615.85 (Assessments). [8] Counsel for PSI informed the Court that by the time of the hearing before the primary judge, that $7 million had become some $11 million. 5. On 25 November 2013, a re-settlement of the SFT took place financed by borrowings of some $8.2 million from the National Australia Bank (NAB). A central step in the restructure involved PSI making nine declarations of trust, by which it declared that it held each of the properties on trust for the unit trusts rather than for the SFT (declarations of trust). The relevant corporate resolutions of PSI recorded that the restructure was intended "to reduce the incidence of land tax attaching to the properties". [9] According to the PSI summary, there was a body of documentary and oral evidence supporting this as "the sole intent of the restructure." 6. The primary judge rejected the DCT's claim that the declarations of trust were void as an alienation of property pursuant to s 37A of the Conveyancing Act 1919 (NSW), [10] but made findings of fraudulent intent, in the sense required by s 37A. [11] However, his Honour declined to make the declaration PSI sought that it held the relevant properties on trust for the particular unit trusts. [12] The validity of the declarations of trust is the subject of Ground 1 of the notice of appeal. The findings of fraudulent intent are the subject of Ground 2. 7. On 4 December 2013, PSI lodged an objection in respect of the assessments, which was partially allowed. On or about 2 October 2014, PSI filed an application with the AAT seeking to review the DCT's decision to reject the balance of its objections to the Assessments. The Statement of Facts and Issues and Contentions filed by PSI in the AAT was in evidence at trial. The primary judge held that PSI had not established, as a matter of evidence, either the asserted facts or the prospects of success of the contentions that were advanced. [13] The AAT proceedings are awaiting a hearing date. 8. On 10 January 2014, the DCT commenced Supreme Court proceedings for recovery of the default Assessments and penalties in the sum of $9,259,674.29, and interest and costs. On 30 July 2014, the DCT obtained default judgment in the amount of $9,603,023.89 (Default Judgment). [14] 9. On 22 February 2016, PSI filed a notice of motion seeking to set aside the Default Judgment for $9,603,023 in favour of the DCT. That notice of motion has not been heard. Appellant's submissions 1. PSI (and the beneficiaries if joined) [15] submit that fairness to all parties can be achieved by granting a stay of the winding up order on the basis of the following undertakings that have been offered as set out in the affidavit sworn by their solicitor, Mr Fred David in support of the motion that: 1. PSI will not incur any liabilities (including as to costs) for the duration of the stay; 2. the appeal will be prosecuted with expedition; 3. the applicants for joinder will be jointly and severally responsible for any costs order that is made in favour of the DCT in the appeal; and 4. that the beneficiaries will procure the payment of PSI's GST debt [16] within twenty-one days of the date of the order, at no expense to PSI. 1. PSI submits it does not carry on any business other than as trustee of seven of the unit trusts, and defending itself against the DCT's claim. It also contends that each of the properties is mortgaged to the NAB to guarantee repayment of the $8.2 million borrowed to finance the restructure. It argues that the DCT will not suffer any prejudice in the event that a stay on the above terms is granted. 2. Secondly, PSI submits that the balance of convenience favours the granting of a stay because: 1. the freezing orders remain in place, meaning that the subject matter of the appeal (the Properties) is protected until further order; 2. the appointment of a liquidator would practically destroy PSI's appeal rights, by taking them out of the hands of the persons who are interested in them and placing them in the hands of the liquidator, who would have no practical interest in disputing his own appointment; 3. the undertakings described at [24] above mean that the subject-matter of the appeal is preserved pending the outcome of the appeal, and the DCT's costs position is protected; 4. There is no "competing right" of the DCT to be weighed in the balance. 1. Thirdly, PSI submits there is a risk that the appeal will prove nugatory if a stay is not granted, as there is a real risk that a liquidator would likely discontinue the appeal, and (absent joinder of the beneficiaries) there would be no party capable of prosecuting it. 2. Fourthly, PSI submits the appeal raises a number of legal issues, in respect of which it has arguable prospects of success. 3. PSI set out extensive submissions concerning the arguability of the issues it seeks to advance on appeal. In short, PSI seeks to argue that the primary judge's exercise of discretion in declining to grant the declarations sought in the Cross-Summons (Ground 1 of the notice of appeal) was vitiated by errors of law and fact. Insofar as the primary judge declined to grant the declarations on the basis that the Court should not perfect the fraudulent intent underlying "the transaction", [17] PSI submitted that his Honour's finding that its intent was fraudulent in the sense used in s 37A of the Conveyancing Act was premised upon a factual error and that on appeal, it would demonstrate that the finding was contrary to the documentary and oral evidence in the case. [18] 4. Insofar as the primary judge declined to appoint a new trustee to the unit trusts, pursuant to s 70 of the Trustee Act 1925 (NSW), PSI submitted there was a conflict in the authorities (and a leading text) which required resolution. That conflict was contended to be that, whereas the authors of Jacobs' Law of Trusts in Australia [19] suggest, in reliance upon Miller v Cameron, [20] that an application for replacement of an insolvent trustee "would be almost certainly assured of success", Austin J in Wells v Wily [21] adopted a different view, which the primary judge embraced, [22] but with which the authors of Jacobs' Law of Trusts in Australia evidently disagree. [23] 5. PSI was also critical of the primary judge's refusal to appoint the new trustee because he formed an adverse view of the performance of Mr George Sleiman (the director of the new trustee) as director of PSI, in its capacity as trustee for the SFT. [24] PSI submitted this had not been the subject of any written or oral submissions by any party and was contrary to the wishes of the beneficiaries as expressed in Mr David's affidavit. I infer the basis of that aspect of the affidavit is to place before the Court on a procedural fairness basis, the evidence PSI contends could have been given had it been on notice of the primary judge's likely finding in this respect. 6. Finally, PSI submitted it could establish on appeal that the primary judge's exercise of his discretion to decline to defer the appointment of a liquidator pending the outcome of the AAT proceedings (Ground 8) was susceptible to appellate correction in a House v R [25] sense because his Honour proceeded on an erroneous finding and did not give effect to unchallenged evidence that PSI did not make any money during the financial years in question, and valuation reports in evidence in the proceedings which showed the Properties to be "typically modest, rundown potential development sites [operated] on a negatively geared basis" which were assessed on a basis suggesting an income of millions. PSI contends that it had tendered its Statement of Facts and Contentions in the AAT and the DCT had not tendered any contradictory evidence. As I understand PSI's contention, it submits that in the light of this evidence, the primary judge's conclusion there was a lack of evidence of substance as to its prospects before the AAT was erroneous. [26] DCT's submissions 1. The DCT opposes the stay application. The DCT submitted that the appeal concerned in substance the time the winding up order takes effect. The DCT contended that the stay application, so far as it relates to the deferral of the winding up order coming into effect, simply traversed matters argued at trial, which had been properly rejected by the primary judge as a clearly proper exercise of discretion. 2. Secondly, the DCT submitted that the primary judgment attracts the principles in House v R and therefore a question is whether error can be identified such that this Court would be likely to re-exercise the discretion at all and, if so, do so differently to the primary judge. 3. Thirdly, the DCT noted that on the evidence at trial, it mattered not whether PSI was looked at as a trustee of one or of multiple trusts. It was uncontroversially insolvent in all its capacities and the primary judge so found that was a sufficient basis for the orders made to wind up. 4. Additionally, the DCT submitted it was found that the company had participated with a s 37A purpose in a transaction to hinder or prevent the payment of the debt owing to the DCT, [27] which involved removing $2.6 million in a payment to Peter Sleiman, that amount representing equity of the company in properties it held as trustee, while indirectly charging that amount on the assets of the company as a secured debt to NAB. 5. The DCT submitted that the decision to wind up PSI with effect immediately was one that was sensibly within the area of proper exercise of the discretion of the primary judge, because there were matters that required the attention of a liquidator in the interests of creditors, [28] including: 1. getting in information that was not available to the Court or the ATO about the affairs of the company; 2. determining who the proper creditors in fact were; 3. ascertaining where the assets were; and 4. determining how to recover assets into the company and taking steps to recover assets in relation to transactions that PSI asserted at trial, [29] were preference payments of debts of the company, which might be brought back to the company by a liquidator. 1. The DCT submitted it could not matter that a liquidator would be disinclined to prosecute an appeal again the making of the winding up order as no such appeal could sensibly be brought. 2. The DCT submitted PSI was effectively submitting that the primary judge ought to have deferred the winding up order to facilitate the prosecution of the AAT proceedings. The DCT contended that the primary judgment [30] dealt with the issue of the deferral of the winding up order taking effect in uncontroversial terms as to what the issues for consideration are and why the decision was made, in particular, as to the issue of the statutory primacy of tax debt collection [31] and the role of the merits of the AAT appeal. 3. The DCT submitted that the fact PSI had never exposed or sought to establish the merits of the AAT proceedings in the proceedings, [32] was fatal to the application to stay the winding up. 4. Further, the DCT contended to the extent PSI was presently conducting the AAT proceedings, its liquidator could form a view about whether they had merit such as to justify them being pursued, as to all or some part. 5. Insofar as the offers made as a basis for a stay were concerned, the DCT submitted that there was no evidence as to the capacity of the beneficiaries to meet the stay undertakings on information and belief, and that given the uncontested reason PSI was without cash assets, and the stay undertakings were offered, was because of the large payment made to Peter Sleiman, [33] it was remarkable that nothing was proffered by him to suggest that a stay of the winding up order would not increase the risk to creditors of a diminished capacity of a liquidator to claw back assets from him, by deferring when a liquidator could commence the process of investigation and pursuit. 6. As to the offer to pay the GST liability and the undertaking not to incur liabilities, the DCT submitted these came at a time well after they ought to have been engaged with and were no real offer of anything of significance, apart from compliance with the law. In oral submissions, the DCT also submitted paying the GST liability could be a preference the liquidator could claw back from it. 7. Finally, the DCT observed that the obligation not to incur further liabilities in an insolvent company had been in place for some time and it had not inhibited PSI or its lawyers from incurring costs, and occasioning costs to the DCT, defending the proceedings commenced by the insolvent company. Stay application 1. The overriding principle on an application for a stay is to determine "what the interests of justice require". [34] 2. The fundamental principles were identified in Alexander v Cambridge Credit Corporation Limited, [35] as follows: 1. where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, the Court will normally exercise its discretion in favour of granting a stay; 2. the onus is upon the applicant to demonstrate a proper basis for a stay; 3. although the Court will not generally speculate about the appellant's prospects of success, still some preliminary assessment could be conducted about whether the appellant has an arguable case; 4. it is a matter of discretion whether the Court grants a stay and, if so, as to the terms which would be fair as part of the granting of a stay; 5. what is important in considering whether or not a stay ought be granted is the balance of convenience and the competing rights of the parties before it; 6. it is not necessary that special or exceptional circumstances should be made out; it is sufficient for the applicant to demonstrate a reason or an appropriate case to warrant the exercise of discretion in its favour; 7. where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay; and 8. the court is not constrained by the fate of any first instance application for a stay. [36] 1. In addition, I accept that other issues arise in cases involving tax assessments issued by the DCT. By reason of s 14ZZM of the Taxation Administration Act 1953 (Cth) (TAA), PSI's AAT proceedings do not affect the legal status of the assessment to tax issued to PSI, unless and until that assessment is varied or set aside. [37] Nevertheless, despite s 14ZZM, there is jurisdiction to grant a stay in such proceedings, albeit that in considering any application for a stay the policy of the TAA as stated in that provision is a matter to which great weight should be attached. [38] 2. However, the question whether the AAT proceedings should be permitted to proceed is not the only issue on PSI's stay application. At the heart of its application is the proposition that the appeal will be rendered nugatory if the stay is not granted. As the Court said in Alexander, that fact will ordinarily be a substantial factor in favour of the grant of a stay. 3. I accept PSI's submission that the balance of convenience favours the grant of a stay. It cannot be gainsaid, in my view, that if a stay is not granted, the future of the appeal is uncertain. I accept that there is a real risk a liquidator would not pursue the appeal. 4. Further, the DCT's position has been protected by the freezing order made by White J which will continue in force. In this respect, I note that, as might be expected, the freezing order permits PSI to pay its reasonable legal expenses so that the force of the DCT's submission (see [44] above) is to that extent diminished. 5. In addition, the joinder of the beneficiaries (an order I consider should be made for the reasons set out below) will secure the DCT's costs. In my view the weight of the DCT's complaint that the beneficiaries did not provide any evidence about their ability to meet such liability, is diminished in the context in which it was made. In Mr David's affidavit, which was admitted without objection, the beneficiaries undertook to procure payment of PSI's GST debt within 21 days, a debt I was informed was in the order of $100,000. I would infer from that offer, that the beneficiaries have the means, directly or indirectly, to meet a substantial liability such as may be incurred in relation to the costs of the appeal. 6. In my view the issues PSI contends will arise on appeal cannot be said to be hopeless. In particular, if it is successful in setting aside the primary judge's finding that the declarations of trust over the properties in favour of the unit trusts, was undertaken for the purposes set out in the primary judgment, [39] PSI has some prospects of obtaining the relief it otherwise sought on its Cross-Claim and Cross-Summons. 7. I accept that the DCT has an interest in having the liquidator commence investigations as soon as possible for the benefit of PSI's creditors. However, again, that has to be balanced against PSI's right to pursue an appeal. It can also be met by granting expedition of the appeal, an order PSI seeks and which, in any event, I would have granted even if not sought. Joinder 1. The principles applicable to joinder of the beneficiaries of a trust to litigation involving a trustee, were summarised in Ashton v Pratt. [40] First, where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. [41] Secondly, although prima facie, where proceedings have been commenced by a trustee, it is not necessary to join as a party any of the persons having a beneficial interest under the trust, that prima facie rule may be displaced where the trustee may not sufficiently represent the beneficiaries' interests for the purposes of the proceedings. [42] 2. In the proceedings below, PSI sought to protect the interests of the SFT and, accordingly the beneficiaries' interests, by its Cross-Claim and Cross-Summons. PSI submits that whereas prior to the making of the winding up order it was appropriate for it to represent the interests of the unit holders, upon the making of the winding up order placing its business and affairs in the hands of a liquidator, it can no longer represent their interests. The beneficiaries also submit that if a liquidator is appointed to PSI, it, as trustee, will no longer sufficiently represent their interests for the purposes of the proceedings, [43] because such liquidator could have no interest in disputing his own appointment. The beneficiaries also submit, and the DCT did not gainsay, that their interests in the Properties, by reason of the unit trusts, and their interests as unit holders in the unit trusts are affected by the orders made below, and that they wish to preserve the appeal rights which affect those interests in light of PSI's pending liquidation. 3. The beneficiaries are clearly affected by the relief PSI seeks in the notice of appeal and application for leave to appeal. Orders dismissing the appeal would be detrimental to them. [44] They have, as submitted, an interest in preserving, and prosecuting, the appeal from the primary judgment. Accordingly, I am of the view that their joinder as appellants is necessary for the proper determination of all matters in dispute in the appeal. 4. The question of payment by the beneficiaries of PSI's GST debt was a matter to which the primary judge adverted in the stay judgment. [45] I accept the force of the observations his Honour made. In this Court, there was brief discussion of one of the questions to which his Honour referred, as to whether such a payment might constitute a preference. In the light of that submission, PSI proffered a further undertaking on behalf of the beneficiaries to pay that money into Court so that it might then abide the outcome of the proceedings. 5. In my view the DCT should have the opportunity to consider whether to accept the beneficiaries' offer to discharge PSI's GST debt. If the DCT determines not to do so, then the beneficiaries should pay that money into Court, with the view that its payment out should abide the outcome of the appeal. Orders 1. I make the following orders: 1. The following persons be joined as the second – ninth appellants in the appeal and application for leave to appeal: 1. Najette Michael; 2. Samantha Sleiman; 3. Angela Michael; 4. Jake 1 Pty Limited; 5. Kailan Pty Limited; 6. 4 Chamberlain Holdings Pty Limited; 7. Procorp Investments Pty Limited; and 8. Tony Sleiman. 1. Upon Peter Sleiman Investments Pty Limited, by its counsel, Mr Hartford Davis, undertaking to the Court that: 1. Peter Sleiman Investments Pty Limited will not by itself, its servants or agents incur any liabilities (including as to costs) pending the final determination of the appeal; and 2. Peter Sleiman Investments Pty Limited will prosecute the appeal with expedition, 1. and further, upon the second – ninth appellants by their counsel, Mr Hartford Davis, jointly and severally undertaking to the Court that: 1. they will prosecute the appeal with expedition; 2. they will be jointly and severally responsible for any costs order that is made in favour of the Deputy Commissioner of Taxation in the appeal; and 3. they will procure the payment of Peter Sleiman Investments Pty Limited's GST debt to which reference is made in the primary judgment at [84], within 21 days of the date of these orders, at no expense to Peter Sleiman Investments Pty Limited; 4. in the alternative, if the Deputy Commissioner of Taxation declines to accept the payment proffered in (c), they will, within 21 days of the date of these orders, pay an amount representing the balance of Peter Sleiman Investments Pty Limited's GST debt as at today's date into court, such payment to abide the outcome of the appeal. I make the following further orders: 1. Stay the orders made by Black J on 24 November 2016 and entered on 1 December 2016 pending the final hearing and determination of the appeal and the application for leave to appeal or the further order of this Court. 2. Expedite the appeal and the summons for leave to appeal. 3. Direct that the summons for leave to appeal and any appeal pursuant to leave be heard concurrently with the appeal. 4. Direct Peter Sleiman Investments Pty Limited to file an amended notice of appeal and amended summons seeking leave to appeal adding the second – ninth appellants as parties; 5. List the appeal and the summons for leave to appeal for directions on 16 December 2016 before the Registrar of the Court of Appeal with a view to obtaining a date for hearing. 6. Costs on the stay application to be costs in the appeal. 7. Direct that the order in (7) be complied with on or before 16 December 2016. ********** Endnotes 1. Deputy Commissioner of Taxation v Peter Sleiman Investments Pty Limited A.C.N. 089 533 666 as trustee for the Sleiman Family Trust [2016] NSWSC 1657 (primary judgment). 2. Deputy Commissioner of Taxation v Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust [2016] NSWSC 1744 (stay judgment) (at [35]). 3. No submissions were made about this application and I have inferred it was not pursued. 4. While I accept that was the basis of the application, nevertheless, it relied, in support of its winding up application, on the evidence that an amount exceeding $10.7 million was due and payable by PSI to it and remained unsatisfied: primary judgment (at [83]). 5. Primary judgment (at [1] – [2]; [87]). 6. Primary judgment (at [1] – [2]; [26]). 7. Ibid (at [15], [26], [30]). 8. Ibid (at [27]). 9. Ibid (at [30] – [32]). 10. Ibid (at [62]). 11. Ibid (at [49]). 12. Ibid (at [65], [66]). 13. Ibid (at [35]). 14. Ibid (at [34]). 15. This issue is considered below. 16. See primary judgment (at [84]). 17. Primary judgment (at [69]). 18. Cf State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3. 19. (8th ed, 2016) at 306 [15-51]. 20. (1936) 54 CLR 572 (at 575); [1936] HCA 13 per Latham CJ. 21. (2004) 50 ACSR 103; [2004] NSWSC 607 (at [26]). 22. Primary judgment (at [76]). 23. Jacob's Law of Trusts in Australia, cf footnote 118 (at 306). 24. Primary judgment (at [78] – [79]). 25. (1936) 55 CLR 499; [1936] HCA 40. 26. Cf primary judgment (at [92]). 27. Primary judgment (at [49]). 28. Primary judgment (at [45]). 29. See primary judgment (at [48] and at [86]). 30. (at [87]ff). 31. Ibid (at [87] – [92]). 32. Primary judgment (at [92]). 33. Primary judgment (at [41]). 34. New South Wales Bar Association v Stevens [2003] NSWCA 95 (at [83]) per Spigelman CJ (Meagher and Sheller JJA agreeing). 35. (1985) 2 NSWLR 685 (Alexander) (at 693 – 695). 36. Alexander (at 691 – 692). 37. Primary judgment (at [83]). 38. Deputy Commissioner of Taxation (WA) v Australian Machinery and Investment Co Pty Ltd (1945) 3 AITR 236 (at 241) per Latham CJ, which related to s 201 of the Income Tax Assessment Act 1936 (Cth), the predecessor of s 14ZZM. 39. (at [9]). 40. [2013] NSWCA 400 (at [23] – [31]) per Bathurst CJ, McColl and Barrett JJA. 41. Ashton (at [21]), referring to John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 (at [131]). 42. Ashton (at [23]). 43. UCPR 7.9. 44. Cf Ashton (at [25]). 45. (at [31]). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2016