RECENT CASES

C&V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2023] NSWCA 167

Area of Law: Contracts, Building and Construction, Appeals

We represented the appellants in a successful appeal which was allowed in part. The trial case centred on whether there was a breach of contract between the appellant and respondent in respect of development work on three buildings; Buildings A, B and C. The NSW Court of Appeal found that the primary judge erred in finding that the partly written, partly oral contract for Building C was conditional on a direction from the respondent prior to commencement of fabrication. The Court also held that the primary judge erred in finding that the award of damages for Building B work could not include the GST component, and accordingly increased the judgment sum awarded to the appellant.

VTBL and Commissioner of Taxation (Taxation) [2023] AATA 168

Area of Law: Taxation Law, Asset Betterment Tax Assessments, Administrative Appeals Tribunal

In one of the few cases in which a taxpayer has succeeded in an appeal against an ATO “asset betterment assessment”, we successfully represented the Applicant who lodged four applications for review of objection decisions made by the Commissioner of Taxation (Respondent). The Administrative Appeals Tribunal was satisfied, on the balance of probabilities, that the Respondent’s 2009, 2010 and 2011 default assessments and the 2016 special assessment were excessive or otherwise incorrect. This was established on the basis that the relevant properties were held on trust for other entities, and the relevant bank accounts were not for the benefit of the Applicant.

Commissioner of Taxation v Carter [2022] HCA 10

Area of Law: Taxation and Revenue Law, Income Tax, Trusts

We represented the respondents in a landmark decision before the High Court of Australia. The main issue was whether the beneficiary’s present entitlement under section 97(1) of the Income Tax Assessment Act is to be determined immediately prior to the end of the income year. The High Court noted that the phrase, ‘‘is presently entitled to a share of the income of the trust’ in section 97 (1) should be construed in the present tense. Accordingly, it was held that beneficiaries of trusts who are made presently entitled to trust income would be taxed on that income regardless of whether it was validly disclaimed after the end of the relevant income year.

Khattar v Khattar; Fayad v Khattar [2023] NSWCA 133
Area of Law: Contracts, Remedies, Appeals
We successfully represented the respondents in an appeal which was dismissed. The appeal concerned, inter alia, the interpretation of the meaning of the word “facilitate” in relation to the construction of a deed. The question put to the court was whether the obligation to facilitate meant there was more than an obligation to simply “help” or make it easier to occur as would a reasonable endeavours clause. It was held that the primary judge correctly construed the deed of agreement and that the obligation to facilitate was more than an obligation to “assist” or to use best endeavours to help achieve the promised outcome.

Turner v O'Bryan Turner [2022] NSWCA 23
Area of Law: Constructive Trusts, Indefeasibility, Knowing Receipt, Knowing Assistance, Equitable Compensation
We represented the appellants in an appeal held in part from orders of the Equity Division of the New South Wales Supreme Court ('NSWSC') to the New South Wales Court of Appeal ('NSWSCA'). The appeal concerned, inter alia, whether the in personam exception to indefeasibility extends to proprietary claims arising under the first and second limbs of Barnes v Addy (1874) LT 9 Ch App 244, that is, knowing receipt and knowing assistance.

Albarran, Kijurina and Shaw as joint administrators of Cooper & Oxley Builders Pty Ltd atf Cooper & Oxley Builders Unit Trust v Commissioner of Taxation (2020)
Area of Law: Taxation Law, Administrative Appeals Tribunal
We currently represent the administrators of the Applicant in the Administrative Appeals Tribunal, seeking a review of the Commissioner’s decision to disallow input tax credits to the administrators under the A New Tax System (Goods and Services) Act 1999 (Cth).

Australian Securities and Investments Commission v AGM Markets Pty Ltd (in Liquidation) & Ors [2020] FCA 208 (2019-2020)
Area of Law: Financial Services, Misleading and Deceptive Conduct, ASIC Powers, Unconscionability, Civil Penalties
In 2019 we were engaged to represent the liquidators of the Third Defendant in these proceedings. We successfully resisted an application by ASIC to remove our clients as liquidators of the Third Defendant. We went on to represent the liquidators in the substantive liability proceedings, which related to the unconscionable sale of various forex instruments to the detriment of investors.

Australian Securities and Investments Commission v AGM Markets Pty Ltd (in Liquidation) & Ors (No 4) [2020] FCA 1499 (2020)
Area of Law: Financial Services, Misleading and Deceptive Conduct, ASIC Powers, Unconscionability, Civil Penalties
In 2020 we continued to represent the liquidators of the Third Defendant in the highly publicised penalty proceedings. The Defendants were ordered to pay approximately $75 million total in pecuniary penalties.
Australian Securities and Investments Commission v Union Standard International Group Pty Ltd & Ors (2019-2020)
Area of Law: Financial Services, ASIC Powers, Freezing Orders
We successfully defended a freezing order application brought by ASIC as against Union Standard International Group Pty Ltd ('USG'), the First Defendant, and the Fourth Defendant. USG was, at the time, one of a number of the large international FX and CFD brokers for whom we act.

Natalie Carter & Ors v Commissioner of Taxation [2020] FCAFC 150 (2019-2020)

Area of Law: Taxation Law, Trust Law, Appeals

We represented the Applicants in a successful appeal from the Administrative Appeals Tribunal to the Full Court of the Federal Court of Australia, heard by Jagot J, Davies J and Thawley J. The focal point of the appeal was the effectiveness of certain trust income distributions and the effectiveness of disclaimers of that income made by the Applicants.

Puddick v Dyamond Developments Pty Ltd & Ors [2019] NSWSC 431 (2019-2020)

Area of Law: Trust Law, Insolvency, Bankruptcy

We were successful in an action to recover an investment that was misappropriated by the Defendant and its sole director, Mr George Hatzipapas for unauthorised purposes. The court found that the funds were held on trust for the plaintiffs. The Defendant was then obliged, as the defaulting trustee, to pay both plaintiffs equitable compensation. This decision was appealed to the New South Wales Court of Appeal but was ultimately unsuccessful and dismissed with costs (see Dyamond Developments Pty Limited v Puddick [2020] NSWCA 32).

Following this judgment, we filed an application pursuant to the Corporations Act 2001 (Cth) to wind up Dyamond Developments Pty Ltd on insolvency grounds. This application was successful. Payment of the judgment debt was then sought from the Second Defendant, which culminated in the sequestration of the estate of the Second Defendant under the Bankruptcy Act 1966 (Cth) (see Puddick v Hatzipapas [2020] FCCA 1070; note the Second Defendant is the Respondent in these proceedings).

Twigg v Twigg (No 4); Lambert v Twigg Investments Pty Ltd (No 3) [2020] NSWSC 1159; Twigg v Twigg [2019] NSWSC 373; Lambert v Twigg Investments Pty Ltd ACN 124 880 799 as Trustee for the Twigg Investments Trust [2018] NSWSC 1748; Lambert v Twigg; Twigg v Twigg (No 3) [2019] NSWSC 1363

Area of Law: Trust Law, Fiduciary Duties , Freezing Orders, Civil Procedure

We acted for all Defendants in these proceedings. The matter dealt with complex issues of trust law. Principally, this included a dispute in relation to unpaid beneficiary entitlements and alleged breaches of fiduciary duty resulting from distributions of trust assets in breach of various trusts in excess of $2 million. As part of these proceedings we also successfully defended freezing orders sought by the Plaintiffs (Twigg v Twigg [2019] NSWSC 373) and negotiated several other procedural applications, including a cross-vesting application (Lambert v Twigg Investments Pty Ltd ACN 124 880 799 as Trustee for the Twigg Investments Trust [2018] NSWSC 1748).

Zakhaim & Ors v Australian Securities and Investments Commission (2020)

Area of Law: Financial Services, ASIC Powers

We commenced proceedings against the Australian Securities and Investments Commission ('ASIC') on behalf of several Defendants who were recipients of notices issued under the Australian Securities and Investments Commission Act 2001 (Cth). While challenging the validity of the notices we negotiated with ASIC as to the production of documents and assisted our client in complying with production of these documents under far less onerous notices.

Confidential v Commissioner of Australian Federal Police (2020)

Area of Law: Proceeds of Crime, White Collar Crime

We act for multiple defendants in these proceedings relating to an alleged crime syndicate that conspired to defraud the Commonwealth and distribution of the proceeds thereof. Currently, we are seeking revocation of asset restraint orders taken out by the AFP pursuant to the Proceeds of Crimes Act 2002 (Cth).

Confidential v Commissioner of State Revenue (NSW) (2020)

Area of Law: Taxation Law, NSW Civil and Administrative Tribunal, Charity Law

We were representing a large industry association in relation to a claim for charitable status in NSW and an accompanying payroll tax exemption. The organisation represents approximately $2 trillion of funds under management.

In the matter of Festival Corp Pty Ltd [2020] NSWSC 1637 (2020)

Area of Law: Civil Procedure

We successfully acted for interested parties seeking leave to access court files in these proceedings in accordance with Practice Note SC Gen 2 for the purpose of informing our clients in relation to separate proceedings despite objections from parties to these proceedings. In the matter of Plutus Payroll Australia Pty Ltd; Deputy Commissioner of Taxation v Synep Pty Ltd (2017-2018)Area of Law: Taxation Law, White Collar Crime In 2017 we successfully defended an action by the Deputy Commissioner of Taxation to wind up Synep Pty Ltd on just and equitable and actual insolvency grounds. The Commissioner alleged that the company was a participant in a syndicate with the purpose of not paying or understanding large taxation obligations to the Commonwealth.

Financial Services and Regulatory Advice

Since our inception in 2017, we have acted for some of the largest global financial services providers in their field. We regularly advise FOREX and CFD issuers on a range of legal issues in relation to financial services laws, as well as providing general commercial advice.

Liquidator Representation

We have acted for numerous liquidators in relation to various claims, including:

Recovery of input tax credits against the Commissioner of Taxation;

Recovery of unfair preference payments from the Australian Taxation Office; and
Recovery of unfair preference payments from the Commissioner of State Revenue (Queensland).

Representation before the Australian Financial Complaints Authority (AFCA)

We have acted for both AFSL holders and complainants in relation to complaints brought to the Australian Financial Complaints Authority. We recently settled a complaint for $200,000 on behalf of an investor with respect to an allegation of unauthorised trading, being 110% of their original loss calculation. Additionally, our representation of AFSL holders has only yielded success, with all complaints being either dismissed or settled for below loss value.