Carey v Carey [2007] FCA 1482

Carey v Carey [2007] FCA 1482

Given evidence suggesting the existence of undisclosed overseas assets of the estate, the applicants, as executors and trustees under s 254 of the ITAA 36, are entitled to preliminary discovery and preservation orders against the respondent under Order 15A rr 6 and 12 of the Federal Court Rules. The Federal Court's jurisdiction to make such orders is established on the basis of prospective Commonwealth statutory claims by the estate, including potential tax liabilities related to undisclosed assets.

Jurisdiction
Australia
Judgment Date
10 August 2007
Procedural Posture
Ex Parte Urgent Application for Preliminary Discovery and Preservation of Assets / Interlocutory
Outcome
Application for preliminary discovery and preservation of assets allowed.
Legal Topics
['preliminary Discovery' 'preservation of Assets' "trustees' Duties" 'jurisdiction of the Federal Court' 'tax Liabilities and Estate Administration']
['practice and Procedure' 'succession Law' 'equity'] ['preliminary Discovery' 'preservation of Assets' "trustees' Duties" 'jurisdiction of the Federal Court' 'tax Liabilities and Estate Administration']

Case Brief

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Procedural Posture

Ex Parte Urgent Application for Preliminary Discovery and Preservation of Assets / Interlocutory

Legal Issues

  1. 1 ['Whether the applicants, as executors, are entitled to preliminary discovery in relation to possible undisclosed overseas assets of the estate.' 'Whether orders for preservation of property, including asset freezing and preservation of documents, should be granted ex parte against the respondent.']

Ratio Decidendi

Given evidence suggesting the existence of undisclosed overseas assets of the estate, the applicants, as executors and trustees under s 254 of the ITAA 36, are entitled to preliminary discovery and preservation orders against the respondent under Order 15A rr 6 and 12 of the Federal Court Rules. The Federal Court's jurisdiction to make such orders is established on the basis of prospective Commonwealth statutory claims by the estate, including potential tax liabilities related to undisclosed assets.

Court Disposition

Application for preliminary discovery and preservation of assets allowed.

Orders

  • ['Respondent restrained from disposing, encumbering or dealing with relevant monies or shares held outside Australia in the names of Grace Carey and/or Harvey Carey.' 'Applicants permitted to notify specified Swiss banks of the orders by facsimile.' 'Respondent to preserve all records relating to specified foreign...