Case: Commissioner of Taxation v Grimaldi (No. 5) [2009] FCA 765
Outcome: referred to
13 July 2009 judgment was given for the applicant against the first respondent in the sum of $36,341,461.73, for the applicant against the second respondent in the sum of $3,552,577.81 and for the applicant against the third respondent in the sum of $3,664,366.20. The judgment against the third respondent was made by consent but without admissions and without prejudice to the rights of the third respondent under Part IVC of the Taxation Administration Act 1953 (Cth) ('the Administration Act'). The judgments against the first and second respondents were made following a finding by the Court that neither the first respondent nor the second respondent had any reasonable prospect of successfully defending those parts of the proceeding which recorded the claims of the applicant upon them as found in paragraphs 3 and 4 of the Notice of Motion filed 24 June 2009 or the updated claims which took into account interest up to 8 July 2009 (see Commissioner of Taxation v Grimaldi (No. 5) [2009] FCA 765 ('Grimaldi (No. 5)'). At [26] in Grimaldi No 5 Graham J said: '26 By a Notice of Motion filed 24 June 2009 the applicant has sought summary judgment against the first, second, third and fourth respondents. Upon the motion coming on for hearing on 13 July 2009, senior counsel for the applicant informed the Court that summary judgment was not presently sought against the fourth respondent. He further indicated that consent orders were in contemplation as between the applicant and the third respondent. In the circumstances the hearing of the Notice of Motion proceeded on the basis that relief was sought against the first respondent generally in accordance with paragraph 3 of the Notice of Motion, against the second respondent generally in accordance with paragraph 4 and against the third respondent generally in accordance with paragraph 5. ... Following the conclusion of the hearing of the motion, but before the delivery of these reasons, that part of the proceeding as between the applicant and the third respondent was settled with appropriate orders being made in accordance with Short Minutes of Order signed by the solicitors for the respective parties. ...' The claim against the fourth respondent Pursuant to an order made on 21 September 2009, an Amended Notice of Motion was filed by the applicant on 6 October 2009 which sought summary judgment for the applicant against the fourth respondent in the amount of $25,561,078.93 together with further general interest charged pursuant to s 204 of the Income Tax Assessment Act 1936 (Cth) ('the 1936 Act'), s 298-25 and Part IIA of the Administration Act from 6 October 2009 to payment or judgment. That prayer for relief in the Amended Notice of Motion came before the Court on 25 November 2009. An Acting Director in the Australian Public Service employed in the Debt section of the Australian Taxation Office at Melbourne in the State of Victoria, Mr Aris Zafiriou swore an affidavit on 24 November 2009 in which he deposed to the fourth respondent's outstanding liabilities totalling $25,909,612.54 at close of business on 22 November 2009. It is in respect of the applicant's claim against the fourth respondent for that amount that summary judgment is presently sought. The right of the applicant to judgments founded upon concurrent or alternative assessments