Case: IEL Finance Limited and Others v Commissioner of Taxation (2006) 62 ATR 165
Outcome: referred to
paragraph 17 of the reasons for judgment, delete the quotation mark that appears after the words 'primary tax'. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 6 October 2006 FEDERAL COURT OF AUSTRALIA IEL Finance Limited v Commissioner of Taxation [2006] FCA 1293 PRACTICE AND PROCEDURE summary judgment entered upon strike-out of initiating processes comprising statements of facts, issues and contentions pleaded by three corporately related taxpayers in complex revenue disputes partial dismissal of taxpayers' appeals primary ground of dismissal being abuse of process secondary ground of dismissal Anshun estoppel appropriate form of orders as to dismissal of parts of initiating processes of each applicant order to be made as to costs Taxation Administration Act 1953 (Cth) ss 14ZZO , 14ZZP , 14ZR (1), 14ZU , 14ZW , and 14ZZ Federal Court of Australia Act 1976 (Cth) ss 22 and 23 Federal Court Rules O 20 subrule 2(1) IEL Finance Limited and Others v Commissioner of Taxation (2006) 62 ATR 165 referred to Commissioner of Taxation v Queensland Trading and Holding Company Limited [2006] FCAFC 112 discussed Hunter v Leahy and Others [1999] FCA 1075 ; (1999) 91 FCR 214 cited IEL FINANCE LIMITED, QUEENSLAND TRADING AND HOLDING COMPANY LIMITED AND SPASSKED PTY LIMITED v COMMISSIONER OF TAXATION NSD 539 OF 2004 NSD 543 OF 2004 NSD 540 OF 2004 NSD 94 OF 2005 CONTI J 29 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 539 OF 2004 BETWEEN: IEL FINANCE LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 21, 26 to 51, 60 to 62 and 65 to 67 of the applicant's amended statement of facts issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1993 be dismissed. 3. The applicant pay the respondent's cost of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 540 OF 2004 BETWEEN: QUEENSLAND TRADING AND HOLDING COMPANY LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 4 to 18, 20, 23, 30 to 59, 63 to 67 and 69 to 72 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1991 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 543 OF 2004 BETWEEN: IEL FINANCE LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 21, 26 to 51, 59 to 51 and 65 to 68 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1996 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 94 OF 2005 BETWEEN: SPASSKED PTY LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 24 to 49, 57 to 59 and 62 to 64 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1994 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 539 OF 2004 NSD 543 OF 2004 NSD 540 OF 2004 NSD 94 OF 2005 BETWEEN: IEL FINANCE LIMITED, QUEENSLAND TRADING AND HOLDING COMPANY LIMITED AND SPASSKED PTY LIMITED Applicants AND: COMMISSIONER OF TAXATION Respondent JUDGE : CONTI J DATE: 29 SEPTEMBER 2006 PLACE: SYDNEY REASONS FOR ORDERS On 21 March 2006 I directed the parties to the four subject proceedings ( IEL Finance Limited and Others v Commissioner of Taxation (2006) 62 ATR 165) to provide draft declarations and/or orders giving effect to the reasons for judgment delivered on that prior occasion. The first of those four proceedings, being numbered NSD 539 of 2004 and involving IEL Finance Limited as applicant, was treated by the parties as the precedent vehicle, for the most part, for implementation of orders to be made in the remaining three proceedings. The abbreviations adopted in these reasons reflect those used in the preceding principal reasons for judgment of 21 March 2006. There appears to be no controversy between the relevant parties regarding the content of the first order to be made in all four proceedings brought of course at the instance of the applicable applicant. Nor is there controversy as to consequential orders numbered 4 to 7 concerning grant of leave to the applicant in all four proceedings to file the amended pleading and to the Commissioner filing a subsequent reply. Where controversy lies is in relation to the nature and scope of the order required to give effective operation as to the implications of the strike-out of the foregoing paragraphs of amended statement of facts, issues and contentions (the proposed order 2) and to the order to be made as to costs of this motion and of the application for summary judgment (the proposed order 3). As to what version of Order 3 as to costs should be made, the Commissioner pointed out that IEF had made no submissions at the hearing in relation to the Commissioner's claim that '[t]he applicant pay the respondent's (ie Commissioners) costs of this motion and of the application', nor led evidence concerning the need to apportion costs incurred by the respondent between issues of additional and primary tax'. The Commissioner referred to [130] of my reasons for judgment where I held that the '[t] he Commissioner must have the costs of the proceedings to date, inclusive of the costs related to the present summary application' , and submitted that the text of the orders now sought should 'reflect that finding precisely' . I think that the Commissioner's submission is correct and reflects the substance of the outcome and the implications of my principal findings made earlier on 21 March 2006 in the IEL Finance principal proceedings ( ante ). Accordingly I have made the orders in each proceedings essentially as proposed by the Commissioner. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 29 September 2006 Counsel for the Applicant: Mr A H Slater QC &amp; P M Fraser Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Respondent: Mr G J Davies QC &amp; Mr S H Steward Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 August 2006 Date of Judgment: 29 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1293.html