mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Envestra Limited v Commissioner of Taxation [2008] FCA 249
Outcome: referred to
Under Pt 3 - 90 of the 1997 Act , the consolidated group is treated as a single taxpayer represented by the head company. The assets of a subsidiary member are treated as being held by the head company. As already noted, the head company inherits the tax history of the subsidiary member when it joins the group. Plainly enough, the regime established by Pt 3 - 90 is intended to reflect, within the tax framework, the commercial and economic realities of corporate group dealings: compare s 700-10. See generally Envestra Limited v Commissioner of Taxation [2008] FCA 249 at [6] - [9] per Mansfield J. As his Honour commented in Envestra at [6], "[t]hat process obviously required rules, including to set the cost for income tax purposes of the assets that a subsidiary member would bring into the group". Just as rules are needed for this purpose, so too rules are needed to govern the situation when a subsidiary member leaves the group. A subsidiary member leaves the group when it ceases to be a wholly-owned subsidiary of the head company. 57 As the earlier discussion shows, the drafting style used in Pt 3 - 90 is a distinctive one: it specifically directs attention to the objects of the scheme as a whole and in respect of aspects of the scheme, and to the particular principles that are instrumental in achieving these objects: see e.g., ss 700-10, 701 -15(2) &amp; (3), 705 -10(2) &amp; (3) and 711-5(2) &amp; (3). The more detailed provisions, or 'rules', that are to be applied to give effect to these principles are to be construed in light of these principles and objects. 58 This appeal is concerned with what happens when a subsidiary leaves the group. The object of Division 711, which governs this situation, is set out in s 711-5, namely, "to preserve the alignment of the head company's costs for membership interests ... established when entities become subsidiary members": s 711-5(2). The means by which this is to be achieved is "by recognising the head company's cost for those interests, just before the leaving time , as an amount equal to the cost of the leaving entity's assets at the leaving time reduced by the amount of its liabilities": s 711-5(3). The legislation is directed to quantifying the head company's cost for membership interests "just before the leaving time", to be done in the manner indicated. This is the principle that is intended to achieve the object of preserving the relevant alignment.
Case: Re Port Supermarket Ltd (In liquidation) [1978] NZLR 330
Outcome: referred to
When used in connection with time, for example in such phrases as "at the time of", the word "at" conveys no very precise meaning. As Casey J said, in Re Port Supermarket Ltd ( In liquidation ) [1978] NZLR 330 at 337, "[t]he ordinary meaning of 'at the time of' suggests some indefiniteness, 'at' having the meaning of 'near' for example, 'at Christmas time' doesn't mean on Christmas day a period a few days either side is also included", citing Re Columbian Fireproofing Co Ltd [1910] 1 Ch 758 at 765. See also Doe d Ellis v Owens (1843) 12 LJ Ex 53 at 56 per Lord Abinger and Sakhuja v Allen [1973] AC 152 at 175-76 per Viscount Dilhorne. What is intended by the word "at" in s 711- 45 (1) depends on the context in which it is used, including the subject matter and the legislative objects and principles.
Case: Re Columbian Fireproofing Co Ltd [1910] 1 Ch 758
Outcome: cited
When used in connection with time, for example in such phrases as "at the time of", the word "at" conveys no very precise meaning. As Casey J said, in Re Port Supermarket Ltd ( In liquidation ) [1978] NZLR 330 at 337, "[t]he ordinary meaning of 'at the time of' suggests some indefiniteness, 'at' having the meaning of 'near' for example, 'at Christmas time' doesn't mean on Christmas day a period a few days either side is also included", citing Re Columbian Fireproofing Co Ltd [1910] 1 Ch 758 at 765. See also Doe d Ellis v Owens (1843) 12 LJ Ex 53 at 56 per Lord Abinger and Sakhuja v Allen [1973] AC 152 at 175-76 per Viscount Dilhorne. What is intended by the word "at" in s 711- 45 (1) depends on the context in which it is used, including the subject matter and the legislative objects and principles.
Case: Doe d Ellis v Owens (1843) 12 LJ Ex 53
Outcome: cited
When used in connection with time, for example in such phrases as "at the time of", the word "at" conveys no very precise meaning. As Casey J said, in Re Port Supermarket Ltd ( In liquidation ) [1978] NZLR 330 at 337, "[t]he ordinary meaning of 'at the time of' suggests some indefiniteness, 'at' having the meaning of 'near' for example, 'at Christmas time' doesn't mean on Christmas day a period a few days either side is also included", citing Re Columbian Fireproofing Co Ltd [1910] 1 Ch 758 at 765. See also Doe d Ellis v Owens (1843) 12 LJ Ex 53 at 56 per Lord Abinger and Sakhuja v Allen [1973] AC 152 at 175-76 per Viscount Dilhorne. What is intended by the word "at" in s 711- 45 (1) depends on the context in which it is used, including the subject matter and the legislative objects and principles.
Case: Sakhuja v Allen [1973] AC 152
Outcome: cited
When used in connection with time, for example in such phrases as "at the time of", the word "at" conveys no very precise meaning. As Casey J said, in Re Port Supermarket Ltd ( In liquidation ) [1978] NZLR 330 at 337, "[t]he ordinary meaning of 'at the time of' suggests some indefiniteness, 'at' having the meaning of 'near' for example, 'at Christmas time' doesn't mean on Christmas day a period a few days either side is also included", citing Re Columbian Fireproofing Co Ltd [1910] 1 Ch 758 at 765. See also Doe d Ellis v Owens (1843) 12 LJ Ex 53 at 56 per Lord Abinger and Sakhuja v Allen [1973] AC 152 at 175-76 per Viscount Dilhorne. What is intended by the word "at" in s 711- 45 (1) depends on the context in which it is used, including the subject matter and the legislative objects and principles.
Case: Whim Creek Consolidated (NL) v Federal Commissioner of Taxation (1977) 17 ALR 421
Outcome: referred to
Payment for shares may, by agreement, be effected by a set off in discharge of a debt owing by the company to the intending member: see Whim Creek Consolidated (NL) v Federal Commissioner of Taxation (1977) 17 ALR 421 at 429. This was what happened in this case. There was no execution of the contract in respect of the shares until the set-off was effected, which was on 30 July 2004. An entitlement to be registered did not arise before this date. There was therefore no "leaving time" before 30 July 2004.
Case: Commonwealth Homes and Investment Company Limited v Smith [1937] HCA 73 ; (1937) 59 CLR 443
Outcome: referred to
There was some debate between the Commissioner and the taxpayer as to the significance of share allotment and issue. In the circumstances, it does not seem to me necessary to explore this issue in any detail. Speaking generally, there will be an allotment when there is a binding contract to issue and take shares and an appropriation of shares, usually by the directors, to the intending member: Commonwealth Homes and Investment Company Limited v Smith [1937] HCA 73 ; (1937) 59 CLR 443 at 461, Dixon J; Central Piggery Co Ltd v McNicoll and Hurst [1949] HCA 19 ; (1949) 78 CLR 594 at 599 per Dixon J, quoting Spitzel v Chinese Corporation (1899) 80 LT 347 at 351 per Stirling J; and Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4 ; (1981) 146 CLR 336 at 371 per Mason J. Plainly enough, an allottee acquires rights against the company, depending in part on the nature of the contract between the intending member and the company. These rights do not, however, turn the allottee into a member holding the shares. This will happen only when the shares "issue", that is, when the shareholder is "put in control of the shares allotted": see Central Piggery 78 CLR at 599-600 per Dixon J. 74 Nominees and Mr Handbury did not become members of Magazines (that is, the holders of the shares in the company) until their names were entered in the share register of the company on 30 July 2004: see St Helens Farm 146 CLR at 427 per Aickin J; and Patcorp Investments 140 CLR at 293, 295-96 per Gibbs J and 303 per Jacobs J. See generally HAJ Ford, RP Austin and IM Ramsay, Ford's Principles of Corporations Law (Butterworths, Australia, 2000), vol 2, at [17.170]. When their names were entered in the register, the shares came into existence as separate items of property: see Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31 ; (2001) 207 CLR 165 at [20] ; St Helens Farm 146 CLR at 427 per Aickin J; also Commonwealth Homes and Investment 59 CLR at 461 per Dixon J. It follows that Nominees and Mr Handbury did not acquire any beneficial interest in shares in Magazines until 30 July 2004, at which point Magazines ceased to be a member of the consolidated group.
Case: Central Piggery Co Ltd v McNicoll and Hurst [1949] HCA 19 ; (1949) 78 CLR 594
Outcome: referred to
There was some debate between the Commissioner and the taxpayer as to the significance of share allotment and issue. In the circumstances, it does not seem to me necessary to explore this issue in any detail. Speaking generally, there will be an allotment when there is a binding contract to issue and take shares and an appropriation of shares, usually by the directors, to the intending member: Commonwealth Homes and Investment Company Limited v Smith [1937] HCA 73 ; (1937) 59 CLR 443 at 461, Dixon J; Central Piggery Co Ltd v McNicoll and Hurst [1949] HCA 19 ; (1949) 78 CLR 594 at 599 per Dixon J, quoting Spitzel v Chinese Corporation (1899) 80 LT 347 at 351 per Stirling J; and Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4 ; (1981) 146 CLR 336 at 371 per Mason J. Plainly enough, an allottee acquires rights against the company, depending in part on the nature of the contract between the intending member and the company. These rights do not, however, turn the allottee into a member holding the shares. This will happen only when the shares "issue", that is, when the shareholder is "put in control of the shares allotted": see Central Piggery 78 CLR at 599-600 per Dixon J.
Case: Spitzel v Chinese Corporation (1899) 80 LT 347
Outcome: cited
There was some debate between the Commissioner and the taxpayer as to the significance of share allotment and issue. In the circumstances, it does not seem to me necessary to explore this issue in any detail. Speaking generally, there will be an allotment when there is a binding contract to issue and take shares and an appropriation of shares, usually by the directors, to the intending member: Commonwealth Homes and Investment Company Limited v Smith [1937] HCA 73 ; (1937) 59 CLR 443 at 461, Dixon J; Central Piggery Co Ltd v McNicoll and Hurst [1949] HCA 19 ; (1949) 78 CLR 594 at 599 per Dixon J, quoting Spitzel v Chinese Corporation (1899) 80 LT 347 at 351 per Stirling J; and Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4 ; (1981) 146 CLR 336 at 371 per Mason J. Plainly enough, an allottee acquires rights against the company, depending in part on the nature of the contract between the intending member and the company. These rights do not, however, turn the allottee into a member holding the shares. This will happen only when the shares "issue", that is, when the shareholder is "put in control of the shares allotted": see Central Piggery 78 CLR at 599-600 per Dixon J.
Case: Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4 ; (1981) 146 CLR 336
Outcome: referred to
There was some debate between the Commissioner and the taxpayer as to the significance of share allotment and issue. In the circumstances, it does not seem to me necessary to explore this issue in any detail. Speaking generally, there will be an allotment when there is a binding contract to issue and take shares and an appropriation of shares, usually by the directors, to the intending member: Commonwealth Homes and Investment Company Limited v Smith [1937] HCA 73 ; (1937) 59 CLR 443 at 461, Dixon J; Central Piggery Co Ltd v McNicoll and Hurst [1949] HCA 19 ; (1949) 78 CLR 594 at 599 per Dixon J, quoting Spitzel v Chinese Corporation (1899) 80 LT 347 at 351 per Stirling J; and Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4 ; (1981) 146 CLR 336 at 371 per Mason J. Plainly enough, an allottee acquires rights against the company, depending in part on the nature of the contract between the intending member and the company. These rights do not, however, turn the allottee into a member holding the shares. This will happen only when the shares "issue", that is, when the shareholder is "put in control of the shares allotted": see Central Piggery 78 CLR at 599-600 per Dixon J. 74 Nominees and Mr Handbury did not become members of Magazines (that is, the holders of the shares in the company) until their names were entered in the share register of the company on 30 July 2004: see St Helens Farm 146 CLR at 427 per Aickin J; and Patcorp Investments 140 CLR at 293, 295-96 per Gibbs J and 303 per Jacobs J. See generally HAJ Ford, RP Austin and IM Ramsay, Ford's Principles of Corporations Law (Butterworths, Australia, 2000), vol 2, at [17.170]. When their names were entered in the register, the shares came into existence as separate items of property: see Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31 ; (2001) 207 CLR 165 at [20] ; St Helens Farm 146 CLR at 427 per Aickin J; also Commonwealth Homes and Investment 59 CLR at 461 per Dixon J. It follows that Nominees and Mr Handbury did not acquire any beneficial interest in shares in Magazines until 30 July 2004, at which point Magazines ceased to be a member of the consolidated group.
Case: Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31 ; (2001) 207 CLR 165
Outcome: cited
Nominees and Mr Handbury did not become members of Magazines (that is, the holders of the shares in the company) until their names were entered in the share register of the company on 30 July 2004: see St Helens Farm 146 CLR at 427 per Aickin J; and Patcorp Investments 140 CLR at 293, 295-96 per Gibbs J and 303 per Jacobs J. See generally HAJ Ford, RP Austin and IM Ramsay, Ford's Principles of Corporations Law (Butterworths, Australia, 2000), vol 2, at [17.170]. When their names were entered in the register, the shares came into existence as separate items of property: see Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31 ; (2001) 207 CLR 165 at [20] ; St Helens Farm 146 CLR at 427 per Aickin J; also Commonwealth Homes and Investment 59 CLR at 461 per Dixon J. It follows that Nominees and Mr Handbury did not acquire any beneficial interest in shares in Magazines until 30 July 2004, at which point Magazines ceased to be a member of the consolidated group.
Case: ACCC v Nationwide News Pty Ltd; ACCC v Smartcom Telecommunications (1996) ATPR 41-519
Outcome: followed
Heerey J noted in ACCC v Nationwide News Pty Ltd; ACCC v Smartcom Telecommunications (1996) ATPR 41-519 at 42,508: That statement of principle [in Hughes ] was approved by the Full Court of this Court in Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1988) ATPR 40-841 at 49,077; (1987)17 FCR 211 at 222. I would observe that the use of the word "may" by Toohey J makes it clear that he is not suggesting an encroachment on the essentially discretionary nature of a costs order, a conclusion made all the clearer by his Honour's reference to the remarks of Jacobs J in Cretazzo . In Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169 Burchett J had to consider the case of a successful defendant who had failed in respect of some issues. His Honour said: It does not necessarily follow that the costs orders otherwise appropriate should be affected. A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably, he may suffer in costs. Ultimately, the question is one of discretion and judgment.
Case: Hughes v West Australian Cricket Association Inc &amp; Ors [1986] FCA 382 ; (1986) 8 ATPR 40-748
Outcome: followed
general principle as to costs was expressed by Toohey J in Hughes v West Australian Cricket Association Inc &amp; Ors [1986] FCA 382 ; (1986) 8 ATPR 40-748 , at 48,136, where his Honour said: Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey (1920) 2 KB 47. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar (1893) 1 QB 564. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at p 12. As Heerey J noted in ACCC v Nationwide News Pty Ltd; ACCC v Smartcom Telecommunications (1996) ATPR 41-519 at 42,508: That statement of principle [in Hughes ] was approved by the Full Court of this Court in Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1988) ATPR 40-841 at 49,077; (1987)17 FCR 211 at 222. I would observe that the use of the word "may" by Toohey J makes it clear that he is not suggesting an encroachment on the essentially discretionary nature of a costs order, a conclusion made all the clearer by his Honour's reference to the remarks of Jacobs J in Cretazzo . In Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169 Burchett J had to consider the case of a successful defendant who had failed in respect of some issues. His Honour said: It does not necessarily follow that the costs orders otherwise appropriate should be affected. A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably, he may suffer in costs. Ultimately, the question is one of discretion and judgment.
Case: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Outcome: considered
applicant refers to the observations of the Full Court in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234-235 where the Full Court recognised that the ordinary rule is that the successful party gets its costs, but: Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. The applicant contends in the present matter that: ... having regard to the time spent and the issues on which the Respondent failed, it is submitted that an award in its favour of 40% of its party/party costs in the proceeding gives adequate recognition of the fact that it succeeded in the overall case, but failed in most of the arguments that it advanced. In my judgment, the usual order as to costs should be made in this case. The fact that the respondents succeeded on one only of the many grounds of invalidity they asserted is not in my view, in the circumstances of this case, "misconduct" such as to require a departure from the ordinary rule. Nor is the respondents' unsuccessful claim of non-infringement. As a matter of fact, the respondents' challenge based on lack of novelty was at the forefront of its defence, and, in my assessment, was the central issue joined on the question of validity. Pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth), on the whole of the material in these proceedings, I order that the applicant pay the respondents costs of and incidental to the proceedings, to be taxed if not agreed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate: Dated: 6 February 2009 Counsel for the Applicant: Mr S Burley SC Solicitor for the Applicant: Bennett &amp; Philp Solicitors Counsel for the Respondents: Mr D Yates SC Solicitor for the Respondents: Freehills Date of Last Submission: 28 March 2008 Date of Judgment: 6 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/57.html
Case: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84 ; (1986) 161 CLR 681
Outcome: applied
respondents accept that the applicable principles are those stated in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84 ; (1986) 161 CLR 681 at 685 and Siminton at [7]. In Burgundy Royale Brennan J said that a stay of proceedings pending an application for special leave is an extraordinary jurisdiction, and an applicant must demonstrate exceptional circumstances before its exercise is warranted. He noted four factors relevant to the exercise of the discretion whether to grant a stay, three of which are relevant here.
Case: Siminton v Australian Prudential Regulation Authority [2008] FCAFC 112
Outcome: applied
31 August 2009 I made orders that the time within which the appellant may file and serve a notice of appeal be extended to 2 April 2009 and that the appeal be allowed. I said there should be no order as to costs. The orders were later varied so as to cure an oversight, by adding an order setting aside the orders of the Federal Magistrates Court and in lieu thereof ordering that the application to that Court be dismissed and that the applicants pay the Minister's costs of the application. Those orders were made in exercise of the Court's appellate jurisdiction: Federal Court of Australia Act 1976 ss 25(1AA)(a) and (2)(b). After the pronouncement of the initial orders counsel for the respondents applied for a stay. Not having had the opportunity to read my reasons for making those orders, counsel was unable at the time to formulate the grounds on which he relied for the stay. On my instructions, my associate advised the parties that I would determine the application on the papers. The respondents have now made written submissions in support of a stay pending an application for special leave to appeal to the High Court. They rely on Order 37 rule 10 of the Court's Rules as the source of power to grant the stay. See Siminton v Australian Prudential Regulation Authority [2008] FCAFC 112 ( Siminton ). The appellant has not filed submissions and neither consents to nor opposes the grant of a stay. The respondents accept that the applicable principles are those stated in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84 ; (1986) 161 CLR 681 at 685 and Siminton at [7]. In Burgundy Royale Brennan J said that a stay of proceedings pending an application for special leave is an extraordinary jurisdiction, and an applicant must demonstrate exceptional circumstances before its exercise is warranted. He noted four factors relevant to the exercise of the discretion whether to grant a stay, three of which are relevant here.