Commissioner of Taxation v Grimaldi (No. 3) [2009] FCA 740

Commissioner of Taxation v Grimaldi (No. 3) [2009] FCA 740

Given that undertakings to the Court were provided by the third and fifth respondents and an effective restraining order on the subject accounts was already registered in New Zealand, granting further freezing orders was unnecessary; the risk of dissipation was insufficient to warrant further relief, and undertakings carry similar contempt sanctions. The application for further freezing orders against the third and fifth respondents was therefore dismissed, but a partial costs order was made against them.

Parties
Applicant: Commissioner of Taxation; First Respondent: Phillip Grimaldi; Second Respondent: Garry Bonaccorso; Third Respondent: IFTC Broking Services Ltd; Fourth Respondent: MGG Capital Pty Limited as Trustee for Webtel Management Super Fund; Fifth Respondent (on the Notice of Motion Filed in Court on 11 May 2009): International Finance Trust Company Ltd
Jurisdiction
Australia
Judgment Date
09 July 2009
Procedural Posture
Application (notice of Motion) for Freezing (mareva) Orders / Interlocutory Judgment on Application for Freezing Orders and Costs
Outcome
Applicant's applications for freezing orders against the third and fifth respondents dismissed; third and fifth respondents to pay one quarter of the applicant's costs of the Notice of Motion filed 11 May 2009. Liberty to apply as to costs order within 7 days.
Legal Topics
Freezing Orders, Equitable Remedies, Mixture of Funds, Tracing Claims, Foreign Corporations, Costs
Equity Injunctions Taxation Company Law Freezing Orders Equitable Remedies Mixture of Funds Tracing Claims +2 more

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Parties

Commissioner of Taxation

Applicant

Phillip Grimaldi

First Respondent

Garry Bonaccorso

Second Respondent

IFTC Broking Services Ltd

Third Respondent

MGG Capital Pty Limited as Trustee for Webtel Management Super Fund

Fourth Respondent

International Finance Trust Company Ltd

Fifth Respondent (on the Notice of Motion Filed in Court on 11 May 2009)

Procedural Posture

Application (notice of Motion) for Freezing (mareva) Orders / Interlocutory Judgment on Application for Freezing Orders and Costs

Legal Issues

  1. 1 Whether freezing orders should be made against the assets of third and fifth respondents in light of existing undertakings and other restraining orders
  2. 2 How equity deals with the mixing of funds of several parties in bank accounts
  3. 3 Effectiveness and necessity of court undertakings versus freezing orders

Ratio Decidendi

Given that undertakings to the Court were provided by the third and fifth respondents and an effective restraining order on the subject accounts was already registered in New Zealand, granting further freezing orders was unnecessary; the risk of dissipation was insufficient to warrant further relief, and undertakings carry similar contempt sanctions. The application for further freezing orders against the third and fifth respondents was therefore dismissed, but a partial costs order was made against them.

Court Disposition

Applicant's applications for freezing orders against the third and fifth respondents dismissed; third and fifth respondents to pay one quarter of the applicant's costs of the Notice of Motion filed 11 May 2009. Liberty to apply as to costs order within 7 days.

Orders

  • The applicant's application for relief against the third respondent in terms of paragraph 4 of the Notice of Motion filed 11 May 2009 be dismissed.
  • The applicant's application for relief against the fifth respondent in terms of paragraph 6 of the Notice of Motion filed 11 May 2009 be dismissed.