Deputy Commissioner of Taxation v Gashi
[2010] 1 VSC 120(Judgment by: Bell J.)
Deputy Commissioner of Taxation
vGashi
Judge:
Bell J.
Legislative References:
Judiciary Act 1903 (Cth) - s 39B
Income Tax Assessment Act 1936 (Cth) - s 170(1); s 175; s 177(1); s 204
Taxation Administration Act 1953 (Cth) - s 255-5(1); s 255-5(2)
Judgment date: 14 April 2010
Judgment by:
Bell J.
INTRODUCTION
[1] During the 2001-2006 financial years, Rasim Gashi and his wife Manuella Gashi acquired substantial assets, developed many properties and transferred large amounts of cash money to people overseas. Yet they declared very little taxable income and failed to lodge some (Mr Gashi) or any (Mrs Gashi) tax returns.
[2] After examining their assets and business activities and conducting a betterment analysis, the Deputy Commissioner of Taxation determined that Mr and Mrs Gashi had earned significant taxable income. Assessments were served on each of them for the amounts of taxation due, together with additional charges for late payment.
[3] The deputy commissioner has issued a proceeding in the court against Mr and Mrs Gashi for the amounts due as at 26 March 2010, being $2,618,490.36 and $3,293,419.57 respectively. When other amounts become due in mid-April 2010, their indebtedness (according to the deputy commissioner) will rise to $4,320,022.96 and $4,699,604.79 respectively.
[4] To ensure that any judgment in the proceeding will be satisfied, the deputy commissioner obtained an ex-parte temporary freezing order from the court preventing Mr and Mrs Gashi from dealing with their assets. The order has been amended in minor ways since. This is the deputy commissioner's application for a freezing order on a final basis.
FREEZING ORDERS UNDER ORDER 37A
[5] The court may make a freezing order under O 37A of the Supreme Court (General Civil Procedure) Rules "for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied." [1]
[6] Where the specified conditions are satisfied, an order may be made against an actual or prospective judgment debtor [2] or a third party. [3]
[7] In the present case, the deputy commissioner seeks orders against Mr and Mrs Gashi as prospective judgment debtors in the existing proceeding and also against third parties, being three of their four children and a family company.
[8] In making a freezing order, the court is required to have regard to Practice Note No 3 of 2006. [4]
[9] As r 37 A.02(1) and para 5 of Practice Note No 3 make clear, the purpose of a freezing order must be to prevent the frustration or abuse of the processes of the court, not to provide security in respect of a judgment or order.
[10] In this respect, r 37A reflects the principles governing asset preservation orders of the kind issued in Mareva Compania Naviera SA v International Bulk Carriers SA . [5] In CSR Ltd v Cigna Insurance Australia Ltd , [6] the High Court considered the nature of the power to make such orders. It said the power was to prevent the processes of the court being abused and included a "power to protect the integrity of those processes once set in motion". [7] Further, in Cardile v LED Builders Pty Ltd , [8] the High Court said: [9]
The integrity of those processes extends to preserving the efficacy of the execution which would lie against the actual or prospective judgment debtor. [10] The protection of the administration of justice which this involves may, in a proper case, extend to asset preservation orders against third parties to the principal litigation.
[11] In Zhen v Mo [11] Forrest J set out the principles relevant to the determination of applications for freezing orders, which I gratefully adopt: [12]
First, that a freezing order, by its very nature, is a drastic remedy and a court must exercise a high degree of caution before taking a step which will interfere with a party's capacity to deal with his or her assets. [13]
Second, the order is not designed to provide security for the applicant's claim. [14] It is solely directed to preserving assets from being dissipated, thereby frustrating the court process. [15]
Third, the applicant bears the onus both in satisfying the Court that the order should be continued and in satisfying the Court as to the amount which is to be the subject of the order.
Fourth, that an order can only be made on the basis of admissible evidence which supports the contentions made by the party seeking the order. Speculation and guesswork is no substitute for either the facts or inferences properly drawn from proved facts. [16]
Fifth, that before such an order can be made it is necessary that the applicant establish--
Sixth, the balance of convenience must favour the granting of the freezing order. [19]
Seventh, that there is no set process determining the exact nature of an order. The order will be framed according to the circumstances of the case. [20]
Eighth, the applicant must establish with some precision the value of prospective judgment. The order should not unnecessarily tie up a party's assets and property. [21]
Finally, there may be discretionary considerations which militate against the granting of a freezing order, such as delay in bringing the application on before the court or a lack of candour in the materials placed before the court. [22]
ORDERS SOUGHT AGAINST MR AND MRS GASHI (RULE 37 A.05(4))
[12] As I said, the deputy commissioner seeks freezing orders against Mr and Mrs Gashi on the basis that they are prospective judgment debtors [23] in the recovery proceeding.
[13] In this case, the court must determine whether the deputy commissioner "has a good arguable case on an accrued or prospective cause of action" in that proceeding. [24] If so, it must determine whether or not "there is a danger that a ... prospective judgment ... will be wholly or partly unsatisfied" because Mr and Mrs Gashi "might" abscond or remove, dispose of or diminish the value of their assets. [25]
[14] I take "might" in r 37 A.05(4) to mean a reasonable possibility, not fanciful or unreal, but not necessarily more than 50%. The order makes clear that, when determining that matter, "all the circumstances" must be taken into account. This would include the likely amount of the judgment, the circumstances in which the cause of action arose, the conduct of the defendants and their capacity to take the avoidance action which gives rise to the danger.
[15] As to whether there is a good arguable case against Mr and Mrs Gashi, the deputy commissioner relies on both an accrued and prospective cause of action. Amounts are due and other amounts will shortly fall due. The amounts are specified in assessments which have been served on Mr and Mrs Gashi, as set out in the statement of claim in the writ dated 26 March 2010 and the affidavits relied on by the deputy commissioner.
[16] There is no doubt that the deputy commissioner has made the assessments and served the assessment notices on Mr and Mrs Gashi. If the assessments are valid (which they dispute), the amounts specified have been, and will be, legally due and payable on the past and future dates that respectively apply. [26] The amounts are and will be legally recoverable as debts due to the deputy commissioner. [27]
[17] Mr and Mrs Gashi dispute the basis on which the assessments have been made. They submitted the causes of action relied upon by the deputy commissioner do not give rise to "a good arguable case". In summary, they submitted:
- •
- the assessments were speculative and not based on proved facts.
- •
- the assessments were not made in the bona fide exercise of the taxation power and are amenable to judicial review under s 39B of the Judiciary Act 1903 (Cth)
- •
- the amended assessments must fail because the time period in item 1 of s 170(1) of the Income Tax Assessment Act 1936 (Cth) is two years, and this was not a case of fraud or evasion within item 5
- •
- the assessments were not each an "assessment" within the definition of that term in s 6(1) of the Income Tax Assessment Ac 1953 (Cth) because they were speculative and tentative
- •
- the interest claims were not the subject of separate assessment notices, as required by ss 8AAF and 280-110 of the Taxation Administration Act
[18] I do not accept these submissions.
[19] The evidence relied upon by the deputy commissioner establishes that in the financial years 2000-2006, Mr Gashi lodged tax returns declaring income of $12,540 (2000), $26,400 (2003), $23,400 (2004) and $49,990 (2005). He did not lodge taxation returns in 2001 and 2002, and has not lodged one since 2005. The evidence establishes that in the financial years 2000-2006, Mrs Gashi lodged no taxation returns.
[20] In this period, Mr and Mrs Gashi bought and developed at least seven properties for amounts ranging from $225,000-$800,000. The purchases were financed with cash, with the proceeds of sales and with substantial bank borrowings. They have made substantial repayments of these borrowings. Mr and Mrs Gashi now own property valued at about $6,700,007, in respect of which they have borrowed about $3,835,692. This is substantial property development and asset acquisition activity.
[21] The deputy commissioner has conducted a betterment analysis of Mr and Mrs Gashi's financial and asset position. That analysis has determined that their property development and asset acquisition activities cannot be reconciled with the low or nil taxable income which they have declared in respect of the relevant period. This analysis forms the basis of the assessments which were made and served and which gave rise (or which will give rise) to the taxation liabilities alleged in the recovery proceeding. The deputy commissioner plainly has a good arguable case in respect of those claims against Mr and Mrs Gashi in that proceeding.
[22] Mr and Mrs Gashi have now had a full opportunity to answer the deputy commissioner's case, including the case put forward in detail in the affidavit evidence. Although Mr and Mrs Gashi have provided some evidence about how the property purchases and development activities were financed, and have made some justifiable criticisms of detail of the deputy commissioner's case, they have not gone anywhere near defeating the factual basis of that case.
[23] More fundamentally, even if Mr and Mrs Gashi had established reasons for doubting the factual basis of the deputy commissioner's case, they would still face the difficulty that, in the recovery proceeding, the deputy commissioner will be relying on the statutory finality of taxation assessments. [28] As Nettle JA said in Trade World Enterprises Pty Ltd v DCT , [29] the finality provisions reflect
a clear policy in favour of the revenue against the taxpayer. The Commissioner is placed by the legislature in a position of special advantage and thus in general is free to pursue recovery proceedings, despite outstanding appeals and reviews against the disallowance of objections. [30]
[24] On the material before me in the present application, I can see no basis on which it might be thought that Mr and Mrs Gashi could successfully attack the enforceability of the assessments in the recovery proceeding. Whether they may be able to attack the merits of the assessments in objection proceedings under Pt IVA of the Income Tax Assessment Act is another matter which is not presently relevant.
[25] I do not think the deputy commissioner's assessments are speculative, based on unproved facts or constitute no valid assessments at all. On the evidence of the deputy commissioner, which has not been seriously undermined by the evidence put forward by Mr and Mrs Gashi, the assessments are based on a bona fide betterment analysis, even accepting some of the criticisms of detail which Mr and Mrs Gashi have made.
[26] Mr and Mrs Gashi have admitted to making a great many of certain international cash transfers which have been alleged against them, but deny others. As I conclude below, the deputy commissioner has a strong case that most of the transfers were made by them or on their behalf.
[27] Although Mr and Mrs Gashi have told me they intend to bring a judicial review challenge against the assessments in the Federal Court of Australia, I have serious doubts about the viability of any such proceeding. The assessments are protected by the conclusivity and privity provisions of ss 175 and 177(1) of the Income Tax Assessment Act 1936 (Cth). After the decision of the High Court in Federal Cmr of Taxation v Futuris Corporation Ltd , [31] it will be necessary for Mr and Mrs Gashi to establish something in the nature of corruption or deliberate maladministration on the part of the deputy commissioner. The evidence before me does not suggest this happened in the present case.
[28] Some of the assessments at issue are amended assessments because they deal with financial years in respect of which taxation returns were lodged. As these assessments were raised outside the two year time period specified in item 1 of s 170(1) of the Taxation Administration Act, there will be an issue at trial about whether item 5 applies. This specifies no time period where (relevantly) the deputy commissioner "is of the opinion there has been fraud or evasion". The deputy commissioner intends to rely on this provision. I do not accept Mr and Mrs Gashi's submission that the provision obviously does not apply. On the evidence before me in this application, I think the deputy commissioner has a good arguable case that it does.
[29] Mr and Mrs Gashi's submissions concerning the need for separate assessment notices with respect to the interest components will be a matter for trial. As I see things here, these arguments do not defeat the deputy commissioner's good arguable case overall, and certainly not for the amounts substantively assessed, which are very considerable. Even excluding the interest components, there is a proper foundation in the deputy commissioner's claims for making a freezing order with respect to all of Mr and Mrs Gashi's assets, and those of the third parties also.
RISK OF DISSIPATION
[30] Under r 37.05(4), the court may make a freezing order if it is satisfied that there is a danger that a judgment or prospective judgment will be unsatisfied (in whole or in part) because the debtor might abscond (para (a)) or remove, dispose of, deal with or diminish their assets and value (para (b)).
[31] The deputy commissioner does not submit that there is a danger of Mr and Mrs Gashi absconding (para (a)). Due to their links with Australia, this is unlikely.
[32] The real issue is whether there is a danger that Mr and Mrs Gashi might remove, diminish, deal with or reduce the value of their assets (para (b)).
[33] In deciding whether such a danger exists, the court does not rely on intuition or guess-work, but may take into account the prior conduct of the defendant, the value of the actual or prospective judgment and the assets or income available to the defendant to satisfy it. Although the court must be cautious before making such orders, it must be borne in mind that the "very purpose of a freezing order is to ensure that assets are not alienated so as to avoid or frustrate the court process." [32]
[34] In some cases the existence of the danger may be inferred from the nature of the good arguable case, as (for example) when the case itself involves "allegations of serious dishonesty". [33] In the usual case, however, the danger will be established by evidence presented in support of the application for the freezing order, as it has been in the present case.
[35] According to the evidence of the deputy commissioner, which I have already referred to, in 2001-2006 Mr and Mrs Gashi engaged in significant property development and asset acquisition activity, yet they have disclosed minimal or nil income and missed lodging some, or lodged no, tax returns. They have raised and supported substantial borrowings exceeding $3 million in respect of properties worth now in excess of $6 million. They have the capacity and know-how to dispose of these properties, raise further borrowings against them and otherwise deal with the properties in a way which may defeat the interests of the deputy commissioner in enforcing the prospective judgments which I have found are based on good arguable causes of action. On these grounds alone, I would conclude that there is a danger of dissipation which would support making a freezing order.
[36] The deputy commissioner also points to a substantial number of international cash transfers which were made by Mr and Mrs Gashi. Focusing on the period relevant to these transfers (2001-2003), the ones made in their own names have been admitted. While there appears to be genuine explanations for these transfers, the transfers themselves demonstrate a capacity and propensity to remove money from the jurisdiction, which is itself relevant to whether there is a danger of dissipation.
[37] The deputy commissioner has presented evidence of a large number of additional transfers made in 2002 and 2003 on behalf of Mr and Mrs Gashi by other persons. The transfers are suspicious because they are usually in amounts just under the $10,000 limit used for monitoring international cash transfers. The evidence strongly suggests the transfers were made by third parties on the initiative of Mr Gashi.
[38] Mr and Mrs Gashi deny any involvement in these transfers. Their evidence in this regard is unsatisfactory. They refer to money being sent from members of their ethnic community in Australia to politically active members of their family in Kosovo and Germany for welfare purposes. The difficulty with this explanation is that it is not supported by any significant evidence other than their own testimony, and directly contradicts the evidence led on behalf of the deputy commissioner, which in some cases is evidence of people approached by Mr or Mrs Gashi to make transfers on their behalf.
[39] After considering the evidence before me, I think it is probable that these disputed transfers were made on Mr and Mrs Gashi's behalf by third parties who were approached by them, and that the transfers were made in amounts under $10,000 to avoid electronic detection. While the payments may have indeed been made for "welfare" purposes to politically active family members in Mr and Mrs Gashi's home country, that is not presently relevant. What is relevant is that the payments reveal that Mr and Mrs Gashi had money to transfer, which suggests they had income to declare which, rather than doing that, they concealed.
[40] Further, Mr Gashi's preparedness to carry money overseas was demonstrated in answers he gave when being interviewed by officers of the Australian Tax Office. He admitted carrying amounts of $20,000-$25,000 in his pockets when overseas without declaring the amounts at Customs checks. He said he "never thought of it". He admitted to buying Australian dollars in the streets of Albania which he brought, undeclared, back to Australia.
[41] Mr and Mrs Gashi submitted that these activities took place some years ago (in 2002-2003), and did not reflect their current behaviour. They submitted there was no risk of dissipation because they had been engaged in the lawful business of property development in Australia for many years, had not fled the jurisdiction, and had not removed or dissipated their assets, despite being subject to investigation by the Australian Tax Office in and since 2007.
[42] While there is some force in these submissions, I think the following considerations justify a conclusion that there is a real danger of dissipation:
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- Mr and Mrs Gashi engaged in substantial property development and asset acquisition activity in 2001-2006 while declaring little or no income and missed lodging some, or lodged no, taxation returns.
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- in 2001-2003 Mr and Mrs Gashi made a substantial number of international cash transfers of amounts under the $10,000 electronic detection limit, and in many cases used third parties to do so
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- Mr Gashi has admitted to travelling with as much as $25,000 of undeclared cash in his pockets to and from Australia, and to buying Australian dollars on the streets of an overseas country which he brought back (undeclared) to Australia
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- Mr and Mrs Gashi have now been assessed as each owing taxation amounts exceeding $4 million (when the full amount falls due shortly), and the recovery proceeding has now been issued against them
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- Mr and Mrs Gashi have a demonstrated capacity to raise borrowings and encumber their assets, and the evidence establishes that they have sufficient equity in the properties they own in order to do so
CLAIMS AGAINST THE GASHI CHILDREN AND FAMILY COMPANY (RULE 37 A.05(5))
[43] The recovery proceeding names Mr and Mrs Gashi as the defendants and alleges taxation liabilities against them. Their three children, Victoria, Samira and Arif, [34] and Gashi Nominees Pty Ltd, which is the trustee of the Gashi Family Trust, are not named as defendants.
[44] The ex parte freezing order was issued against all six defendants. The deputy commissioner seeks the final orders on the same basis.
[45] Under r 37 A.05(5)(a) and (b), the court may make a freezing order against a third party if it is satisfied that an actual or prospective judgment may go unsatisfied (in whole or in part) because the third party "holds" a power of disposition or control over assets "of" the actual or prospective judgment debtor or that, under a process which is or "may" ultimately be available to the applicant, the third party may be ordered to disgorge their assets or contribute towards satisfying the judgment.
[46] In Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd , [35] Hargrave J said that r 37 A.05(5) was based on the decision of the High Court in Cardile v LED Builders Pty Ltd . [36] In that case, the High Court set out the following principles with respect to making freezing orders against third parties: [37]
What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word "may", be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which: (i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including "claims and expectancies", of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor.
[47] Further, in Robmatjus , Hargrave J went on to say when a relevant process "may" be available: [38]
It was submitted on behalf of the defendant and the non-parties that, in order to establish that a relevant process "may" ultimately be available, the plaintiffs must establish "a compelling cause of action" for relief as a result of such process being instigated. It was submitted that a mere possibility that some process may ultimately lead to relief of the relevant kind is not sufficient for the purposes of the rule. I do not accept this submission. Although I accept that a merely theoretical possibility will not fall within the rule, I do not think that a plaintiff need establish a "compelling cause of action". It will be enough if a plaintiff can satisfy the Court that, in all the circumstances of the case, there is a real case to be investigated under the process or processes relied upon as potentially yielding a means of satisfaction of the judgment from the assets of the non-parties.
[48] The evidence of the deputy commissioner in the present case establishes that the children and the company own certain property which they acquired during the relevant period (2001-2006). The children earned no significant income in that period. The trustee company did not lodge tax returns during that period.
[49] The children did not have the income or independent borrowing capacity to acquire the properties on their own behalf. Mr and Mrs Gashi do not contend that they did. Mr Gashi admits that he bought the relevant properties in the names of his wife and Victoria (Altona), Samira (Niddrie) and Arif (Essendon). On the evidence, Mr Gashi then treated the properties as his own, developing them as he saw fit.
[50] Likewise, the family company had no income or independent borrowing capacity with which to buy property. It appears the company is the vehicle through which Mr Gashi conducts property development activity.
[51] Rule 37 A.05(5)(a)(i) refers to a third party who "holds" a power of disposition over assets "of" an actual or prospective judgment debtor. These concepts are capable of applying in different circumstances. As relevant to the present case, an asset is "of" a debtor if they have the beneficial but not the legal ownership. Further, a third party "holds" a power of disposition over such assets if they have the legal but not the beneficial ownership and can dispose of the assets in law. The rule is thus engaged whenever a third party has legal ownership of property on behalf of beneficiaries who are actual or prospective judgment debtors and possesses the power in law to dispose of the property, whether they intend to use that power or not. The fact that they possess the power is sufficient. Of course, these are not the only circumstances in which the rule is engaged, and discretionary considerations will influence whether an order should be made.
[52] In terms of r 37.05(5)(a), I think there is a danger that a prospective judgment of the deputy commissioner against Mr and Mrs Gashi will go unsatisfied because the Gashi children and the family company hold a power of disposition of the property which they own on Mr and Mrs Gashi's beneficial behalf. There is a danger that the power of disposition will be used to put the property beyond the reach of the deputy commissioner when he comes to enforce the likely judgment.
[53] Rule 35.05(5)(b) refers to a process which may ultimately be available under which the third party may be required to disgorge assets or make a contribution to the judgment. This also covers (while not being confined to) a case where (as here) the assets are held in law by a third party on behalf of beneficial owners who are actual or prospective judgment debtors. The rule is engaged where the actual or prospective judgment creditors have, in the words of Hargrave J in Robmatjus v Violet Home Loans Australia Pty Ltd , [39] a "real case to be investigated" pursuant to which the property may be made available for satisfying a judgment debt. That, in my view, is the case here as regards the relevant property of the three Gashi children and the family company.
DISRETIONARY CONSIDERATIONS
[54] Applications for freezing orders must be brought without delay and, if made ex parte, the applicant has "a duty to make full and frank disclosure of all material facts to the court." [40]
[55] Mr and Mrs Gashi submitted the deputy commissioner was guilty of delay because the investigation by the Australian Taxation Office began in 2007, yet the assessments were only made in March 2010.
[56] I think a delay between an investigation by the Australia Taxation Office and the making of assessments arising out of the investigation is relevant to the question whether freezing orders should be made under r 37 A. But the present case was a complex one. I do not think the delay which transpired was unreasonable. Further, the deputy commissioner made the assessments, commenced the recovery proceeding and sought the ex parte freezing order on the same day (26 March 2010). There was therefore no delay in that regard.
[57] I do not accept the submissions made by Mr and Mrs Gashi that the deputy commissioner was not candid with the judge who made the ex parte freezing order. There was nothing of which that judge should have been made aware by the deputy commissioner.
[58] The discretionary considerations otherwise strongly favour making the orders sought. The orders will not prevent Mr and Mrs Gashi operating their property development business in the ordinary way.
ANCILLARY ORDERS
[59] Rule 37 A.03(1) enables the court to make orders which are ancillary to freezing orders. Under r 37 A.03(2), such orders include orders for the purposes of eliciting information relating to relevant assets.
[60] Ancillary orders may be made against actual or intended parties to proceedings (such as Mr and Mrs Gashi) and also third parties (such as their three children and the family company). [41]
[61] An ancillary order is just that, not a free-standing order. To make an ancillary order, the criteria for making a freezing order in r 37.05(4) (parties or prospective parties) and (5) (third-parties) must first be satisfied. Then the court must consider whether to exercise its discretion in r 37 A.03(1) to make the ancillary order.
[62] The ex parte order in the present case does not contain ancillary orders. That matter was left for the judge hearing the application for the freezing orders on a final basis, which is the application currently before me.
[63] The deputy commissioner seeks ancillary orders only against the three Gashi children and the family company as third parties. The orders would require them to provide information on affidavit about their world-wide asset holdings and also about their interests in the properties which they acquired with funds provided by Mr and Mrs Gashi.
[64] As the criteria in r 37 A.05(5) are satisfied as regards the third parties, the issue is whether I should exercise the court's discretion in r 37 A.03(1) to make ancillary orders.
[65] In the circumstances of the present case, I think it is appropriate to do so. The financial and property affairs of Mr and Mrs Gashi have become intermingled with the financial and property affairs of their children and the family company. The facts and circumstances which have given rise to the assessments, on the basis of which the recovery proceeding has been issued, include facts and circumstances relating to the acquisition of the relevant property by the children and the company. Moreover, the nature of the relationship between the three children and the company on the one hand and Mr and Mrs Gashi on the other make it reasonable to require them to disclose information relating to their world-wide asset holdings. The need for this disclosure in directly connected to the need to ensure that the deputy commissioner can enforce the likely judgment.
[66] I will therefore make the ancillary orders sought against the third parties.
CONCLUSION
[67] The deputy commissioner has established there is a good arguable case against Rasim and Manuella Gashi for the recovery of substantial amounts of income tax which have been assessed as due and payable.
[68] After examining the evidence, I have concluded there is a danger the likely judgment in favour of the deputy commissioner in the recovery proceeding will go unsatisfied because Mr and Mrs Gashi might remove, dispose of, deal with or diminish the value of their property.
[69] I have also concluded there is a danger the judgment will go unsatisfied because three of the Gashi children, and a family company, have a power of disposition over property which they hold on Mr and Mrs Gashi's beneficial behalf.
[70] In these circumstances, under O 37A of the Supreme Court (General Civil Procedure) Rules 2005 there will be freezing orders in respect of the relevant property of Mr and Mrs Gashi as parties to the proceeding, as well as ancillary orders directed to the children and the company as third parties.