Australian Spirit Management Pty Ltd & Ors v Commissioner of Taxation & Ors [2012] NSWSC 123

Australian Spirit Management Pty Ltd & Ors v Commissioner of Taxation & Ors [2012] NSWSC 123

The balance of convenience did not favour making orders for release of funds to ASM pending hearing of the wider application; detriment to Defendants would be real if Plaintiff's case failed and there was no adequate undertaking as to damages, whereas immediate detriment to Plaintiffs by deferring release was limited.

Parties
Plaintiffs: Australian Spirit Management Pty Ltd & 5 Ors; Defendants: Commissioner of Taxation & 83 Ors; Defendant: Chambers Finance Ltd; Defendant: Grant McKenzie Hong Kong Ltd; Defendant: Brackwell Trading Ltd; Plaintiffs' Solicitor: Kelvin Solari; 3rd Defendant's Solicitor: Atanaskovic Hartnell; 2nd and 4th Defendants' Solicitor: Deutsch Miller; 7, 20, 34, 38, 41, 46, 50, 53, 63, 64, 69, 70, 72, 79, 80, 81 Defendants' Solicitor: MacRae Lawyers; 43rd and 44th Defendants' Solicitor: Mark Turnbull & Co; 47th and 48th Defendant's Solicitor: Robertson Saxton Primrose Dunn
Jurisdiction
Australia
Judgment Date
17 February 2012
Procedural Posture
Interlocutory Application / Decision on Application for Release of Preserved Funds Pending Final Hearing
Outcome
Relief refused
Legal Topics
Preservation Orders, Interlocutory Relief, Release of Funds, Balance of Convenience
Practice and Procedure Equity Preservation Orders Interlocutory Relief Release of Funds Balance of Convenience

Case Brief

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Parties

Australian Spirit Management Pty Ltd & 5 Ors

Plaintiffs

Commissioner of Taxation & 83 Ors

Defendants

Chambers Finance Ltd

Defendant

Grant McKenzie Hong Kong Ltd

Defendant

Brackwell Trading Ltd

Defendant

Kelvin Solari

Plaintiffs' Solicitor

Atanaskovic Hartnell

3rd Defendant's Solicitor

Deutsch Miller

2nd and 4th Defendants' Solicitor

MacRae Lawyers

7, 20, 34, 38, 41, 46, 50, 53, 63, 64, 69, 70, 72, 79, 80, 81 Defendants' Solicitor

Mark Turnbull & Co

43rd and 44th Defendants' Solicitor

Robertson Saxton Primrose Dunn

47th and 48th Defendant's Solicitor

Procedural Posture

Interlocutory Application / Decision on Application for Release of Preserved Funds Pending Final Hearing

Legal Issues

  1. 1 Whether preservation orders should be modified to release certain moneys to the plaintiffs pending final hearing
  2. 2 Whether balance of convenience favours release of funds to allow plaintiffs to fund litigation

Ratio Decidendi

The balance of convenience did not favour making orders for release of funds to ASM pending hearing of the wider application; detriment to Defendants would be real if Plaintiff's case failed and there was no adequate undertaking as to damages, whereas immediate detriment to Plaintiffs by deferring release was limited.

Court Disposition

Relief refused

Orders

  • Narrower application for release of preserved funds dismissed.
  • Costs of the motion reserved to be determined at a later stage.