mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Esso Australia Resources Ltd v Commissioner of Taxation 1998) [1998] FCA 1655 ; 83 FCR 511
Outcome: cited
One is reminded by these submissions of the comments of Black CJ and Sundberg J in Esso Australia Resources Ltd v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511 , 518-19: In our opinion the plain language of the sections is confirmed by the only directly relevant extrinsic material, which shows that parliament intended the consequence that is said by the appellant to be anomalous. Especially when different views can be held about whether the consequence is anomalous on the one hand or acceptable or understandable on the other, the Court should be particularly careful that arguments based on anomaly or incongruity are not allowed to obscure the real intention, and choice, of the Parliament. ... [w]e are unable to conclude that the operation of ss 118 and 119 on a literal reading does not conform to the legislative purpose. 70 I do not accept that any anomaly arises from the construction pressed by the Commissioner in this case. I accept the submissions of the Commissioner that the taxpayer, having chosen a particular way in which to organise its affairs, must then be bound by any fiscal consequences that follow, and this does not lead to an anomaly, but arises because of the application of the legislative provision to the facts. 71 In light of the above reasons, the application should be dismissed with costs. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 10 December 2008 Counsel for the Applicant: G J Davies QC, S H P Steward Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: J Davies SC, P Nicholas Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 October 2008 Date of Judgment: 10 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1871.html
Case: Falconer v Pederson [1974] VR 185
Outcome: cited
Whilst a useful reference, one should be careful not to be restricted by dictionary definitions and one should look at the context in which each word appears in s 160ZH(3)(c) and the context in which s 160ZH(3)(c) itself appears: see, eg, Falconer v Pederson [1974] VR 185 , 187. 52 I have already attempted to explain that context. Looking at the context in which the concept 'state or nature' is used in s 160ZH(3)(c) referable to a share, I do not consider that concept includes a share's value. As I have said, s 160ZH(3)(c) in my view, clearly distinguishes the concept of 'value', with 'state' or 'nature'. I do not mean by this to treat the term 'state or nature' as a composite phrase, but I do consider it appropriate to view both words in the context in which they appear alongside 'value' as found in the first limb of s 160ZH(3)(c). Undoubtedly, a share as an item of property differs from property such as land in that a share's characteristics are fixed primarily by the obligations and rights in the contract between company and shareholder. In the case of land, as the example in the Explanatory Memorandum would indicate, 'value' would not be included within the concepts of 'state' or 'nature'. Similarly, in the case of a share 'value' is not included within the concepts of 'state' or 'nature'. 53 Even by just considering the words 'state' or 'nature' themselves, I am also of the view that it cannot be said in relation to a share as an item of property, which may be bought and sold, that 'value' forms any part of the nature or state of that form of asset. The 'nature' of a share refers to the bundle of rights (and obligations) attaching to a share, as described previously, being the inherent qualities of a share. Those rights exist, and may be exercised, irrespective of their value. The 'state' of a share does not refer to its 'value', but refers to other matters, such as whether a share is fully paid up or not. The value of a share does not affect the 'state' of a share, if one focuses on the particular condition of a share as an item of property.
Case: Pilmer v Duke Group Limited (in Liquidation) [2001] HCA 31 ; (2001) 207 CLR 165
Outcome: considered
It is then convenient at this point to consider the notion of a share. A share was described by Williams J in Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 156: In Borland's Trustee v. Steel Bros. &amp; Co. Ltd. (1901) 1 Ch. 279, at p 288, Farwell J., in a passage which Lord Russell of Killowen in Inland Revenue Commissioners v. Crossman (1937) A.C. 26 , at p 66 described as an accurate exposition of the nature of a share, stated that a share is the interest of a shareholder in the company measured by a sum of money for the purpose of liability in the first place and of interest in the second, but also consisting of a series of mutual covenants entered into by all the shareholders inter se in accordance with ... the Companies Act ... a share is an interest measured by a sum of money and made up of various rights contained in the contract, including the right to a sum of money of a more or less amount. (emphasis in original) More recently, the joint judgment of McHugh, Gummow, Hayne and Callinan JJ in Pilmer v Duke Group Limited (in Liquidation) [2001] HCA 31 ; (2001) 207 CLR 165 , 179 cited the statement of Farwell J as the classic description of a share. However, their Honours went on to say that 'the reference to measuring the interest of a shareholder in a company by a sum of money is no longer apt under present corporations law in Australia following the abolition of the concept of par value and of authorised capital' (at [19]).
Case: PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241
Outcome: cited
At the outset, I reject the Commissioner's submission that I should elevate the UK decisions or the dicta contained therein to decisions or dicta which I should presume the Commonwealth Legislature treated as correct and adopted in relation to the meaning of the words now under consideration in s 160ZH(3)(c): see, eg, Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 ; (2000) 202 CLR 133 , at [282]-[283]; and PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241, 251.
Case: Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74 ; (1986) 68 ALR 416
Outcome: cited
Both parties, in support of their own constructions, referred to the Explanatory Memorandum to the Income Tax Assessment Amendment (Capital Gains) Bill 1986 (Cth) which inserted s 160ZH(3)(c) into the Act. I note that care must be taken in the use of an explanatory memorandum: see, eg, Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74 ; (1986) 68 ALR 416 , 420. 42 The Explanatory Memorandum stated (although in this text referring to 160ZH(1)(c) which is in the same terms as s 160ZH(3)(c)): An example of the type of expenditure which may be included in the cost base to a taxpayer of an asset under paragraph (c) would be expenditure incurred on the extension of a building. Generally, expenditure on rates, interest and repairs will not fall within the cost base of the asset as these items of expenditure may be classed as expenses of a revenue nature and not of a capital nature. Note that expenditure incurred in enhancing the value of the asset must be reflected in the state or nature of the asset at the time of disposal. For example, if a carport is erected adjacent to an income-producing property but at a later stage is dismantled and a garage erected, the expenditure incurred in erecting the carport would be disregarded in calculating the cost base of the property as it is no longer reflected in the state or nature of the asset. Similarly, paragraph (c) is designed to exclude from the cost base any expenditure incurred for the purpose of enhancing the value of the asset by way of improvements which have wasted away prior to disposal. 43 In considering the competing submissions on the construction of s 160ZH(3)(c), the Explanatory Memorandum provides little assistance, although it does indicate an approach to the intended operation of the provision in relation to tangible assets. The example given of the type of capital expenditure covered by s 160ZH(3)(c) is that of expenditure incurred to erect a carport adjacent to an income-producing building. The example continues that if the carport were to be subsequently dismantled prior to sale, the expenditure would be disregarded as it would not be reflected in the state or nature of the asset at the time of the sale. Such an example is not easily translatable to intangible property such as shares as the example assigns physical characteristics to 'state or nature'. The example does indicate, however, that any physical changes brought about by the expenditure must continue and must not have dissipated prior to disposal of the asset, for a taxpayer to take advantage of the provision.
Case: Re Taxpayer and Federal Commissioner of Taxation [2004] AATA 1304 ; (2004) 58 ATR 1172
Outcome: cited
I have considered the issue for determination without reference to any direct authority on s 160ZH(1)(c). The phrase 'reflected in the state or nature of the asset' has not been authoritatively considered by Australian courts. The only consideration of the phrase, appears in Re Taxpayer and Federal Commissioner of Taxation [2004] AATA 1304 ; (2004) 58 ATR 1172 , in which Member G A Barton considered the identical phrase as found in ss 160ZH(1)(c) and (2)(c) of the Act. Member Barton found that the taxpayer was not entitled to include capital expenditure by way of incentive payments in the cost base of the shares in calculating the capital gain on the sale of those shares, as they were not reflected in the 'state or nature' of the shares at the time of disposal. There was no dispute that the incentive payments constituted expenditure of a capital nature. Member Barton concluded, however, that (at [43]): The Tribunal finds that none of the rights that constituted the applicant's shares in the proprietary company and, subsequently, in the new company, was reflective of the incentive payments. There was no evidence before the Tribunal on which it could find that the applicant's shares in the proprietary company or in the new company, constituted a class of shares reflecting the amount of the incentive payments because they included a special or additional right attributable to such payments. The fact that the issued shares in the new company were listed on the boards of the London and Australian stock markets did not make the state or nature of the applicant's shares reflective of the amount of the incentive payments. The state or nature of the applicant's shares in the new company was indistinguishable from that of other issued shares in the new company. The Tribunal rejects the proposition that any causal link between the incentive payments and the listing of the issued shares in the new company makes the state or nature of the applicant's shares in that company reflective of the amount of the incentive payments for the purposes of ss 160 ZH(1)(c) and (2)(c) of the ITAA 1936. So the Tribunal finds that the state or nature of the applicant's shares in the proprietary company did not reflect the amount of the incentive payment when they were exchanged for shares in the new company, and the state or nature of the shares in the new company did not reflect that amount when the applicant disposed of them. In the light of this finding it is unnecessary for the Tribunal to consider whether the incentive payment was incurred for the purpose of enhancing the value of the applicant's shares in the proprietary company and in the new company and whether the indexed cost base of the trustee's shares in the new company included any part of the incentive payment.
Case: Sydney Futures Exchange Ltd v Australian Stock Exchange Ltd [1995] FCA 1106 ; (1995) 56 FCR 236
Outcome: cited
More specifically, a share comprises 'a congeries of rights in personam ' ( Archibald Howie [1948] HCA 28 ; 77 CLR 143 at 154 per Dixon J) which includes the right to participate in dividends, the right to participate in a distribution of assets upon a winding up, and the right to receive capital upon a reduction of capital by the company: Sydney Futures Exchange Ltd v Australian Stock Exchange Ltd [1995] FCA 1106 ; (1995) 56 FCR 236 at 255.
Case: The Trustees of the FD Fenston Will Trusts v The Commissioners of Her Majesty's Revenue and Customs (unreported, Special Commissioners, 7 February 2007)
Outcome: cited
In The Trustees of the FD Fenston Will Trusts v The Commissioners of Her Majesty's Revenue and Customs (unreported, Special Commissioners, 7 February 2007), the Special Commissioners considered s 38(1)(b) of the Taxation of Chargeable Gains Act 1992 (UK) which likewise contains the phrase 'reflected in the state or nature of the asset'. The expenditure in this case was made by the trustees as capital contributions to a company in which they held shares. Those shares were the relevant assets. The appellants submitted that the shares increased in value following the expenditure and the expenditure was therefore reflected in the state or nature of the shares at that time, continuing through to the time of disposal. However, the Special Commissioners found at [23] that state or nature could not be equated with value: It is clear from the provision that Parliament did not intend that all expenditure incurred for the purpose of enhancing the value of an asset should be deductible in computing capital gains. Only such expenditure as would be reflected in the "state and nature of the asset at the time of the disposal" was to be allowed. Further, "state and nature" for these purposes must be something other than merely the value of the asset otherwise this phrase would add nothing to the immediately preceding words. In this case the Capital Contributions did not result in any increase in the number of shares in issue, or result in any change in the rights or restrictions attaching to the shares. The only effect of the Capital Contributions was to increase the surplus of the company which would increase the amount available for distribution to shareholders, and therefore presumably the value of the shares. We do not consider this sufficient for the expenditure on the Capital Contributions to be reflected in the state and nature of the shares, either at the time the expenditure was incurred or at any time subsequently. (emphasis added) 63 The Commissioner before me relied upon above passages in the UK authorities, and particularly the last sentence in Fenston's case. On the other hand, the taxpayer submitted that the UK authorities have no precedential value, either because in the case of Aberdeen the actual decision relied on was overturned by the House of Lords, and in the case of Fenston , the comments relied upon were clearly dicta. The taxpayer also contended that the dicta relied upon by the Commissioner before me in the above passages was wrong.
Case: Ferdinands v The Chief of Army [2003] FCAFC 10
Outcome: referred to
The question of impecuniosity, of course, is always a relevant factor for a person who is unrepresented and who happens to be in those circumstances. However, the authorities are clear that impecuniosity itself is not a basis on which a party is relieved of the obligation to prosecute his application diligently: Ferdinands v The Chief of Army [2003] FCAFC 10 at [36] . Moreover, the failure of the applicant to obtain a solicitor or counsel who satisfies what he says is a test of honesty and decency cannot be a ground for or an excuse for the applicant failing to bring the application within the time prescribed by the High Court Rules . In the end, I think it not unfair to say that no real explanation has been given for the delay, notwithstanding that this proceeding was commenced more than two years ago. 25 The applicant has been convicted in the Adelaide Magistrates Court and by a Defence Force Magistrate. The thrust of the applicant's complaints is that Brigadier Appleton wrongly took into account those convictions and the circumstances surrounding those convictions. Rather, Brigadier Appleton should have, it is asserted, ignored the convictions because the convictions ought to be set aside. 26 The proceeding which was commenced in the High Court is patently an abuse of process in that it seeks by the application for the issue of the constitutional writs to set aside a conviction in the Adelaide Magistrates Court and a conviction by a Defence Force Magistrate.
Case: Gallo v Dawson (1990) 93 ALR 479
Outcome: cited
Both Mr Ferdinands and Dr Bleby, who appeared for the respondents, referred me to Gallo v Dawson (1990) 93 ALR 479. In Gallo v Dawson 93 ALR 479 , McHugh J set out discussing the then High Court Rules relating to an extension of time at 480: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors &amp; Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. 21 I accept, of course, that all of those matters are relevant. Those matters were all referred to by McHugh J in Gallo v Dawson 93 ALR 479. But they are, I think, of less importance than the two primary issues which must be determined. The primary issues are first, the explanation for the delay and secondly, the prospects of the applicant succeeding on the substantive application. 22 The applicant has filed four affidavits in support of the application for an extension of time. In an affidavit sworn on 4 May 2007, he says: 55. With regard to Extension of Time matters, I say that time should be and will be extended until I can find a legal practitioner that is honest and decent and can step forward and assist the High Court of Australia in these matters of fraud and racial hatred of employees in the Department of Defence. 23 In his last affidavit, which was sworn on 30 October 2007, he asserts that he believes that he has acted within a reasonable time. He says in that affidavit that the delay has been caused by: 38. ... [E]xtreme poverty and hardship and trying to get the respondents to actively engage in serious issues such as professional misconduct, process corruption and hate crimes without using the courts.
Case: Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491
Outcome: cited
In Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 , McHugh J was concerned with an application for the issue of the writs of certiorari and mandamus in circumstances where the application was 11 months out of time for the issue of certiorari and 15 months out of time for the issue of mandamus, a similar delay to the period in this proceeding. 18 McHugh J said that the grant of an extension of time is not automatic whether the substantive application is for constitutional relief or by way of an appeal. He said (at [13]): A "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration. 19 McHugh J said that he needed to take into account the explanation for the delay and, where the application is for an extension of time, the prospects of the application succeeding.
Case: Lamb v Ariss [2006] FMCA 510
Outcome: cited
On 13 April 2006, the Magistrate discharged the mandatory injunction and related orders on the ground that the applicant's solicitor had failed to act with the requisite candour when seeking an order ex parte: see Lamb v Ariss [2006] FMCA 510 (the Magistrate's reasons). 3 The applicant applies for leave to appeal, if it be required, from the discharge of the mandatory injunction. (A notice of appeal has been filed.) The applicant also moves the Court for a stay of the proceeding before the Magistrate pending the hearing and determination of the appeal. 4 Three issues arise for determination by me: (a) whether leave to appeal is required; (b) if leave is required, whether leave should be granted; and (c) if no leave is required or, if leave is required, leave is granted, whether the applicant is entitled to the stay.
Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: applied
The Magistrate's orders of 13 April 2006 are interlocutory. They do not finally determine the rights of the parties. See Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 and Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213.
Case: Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213
Outcome: applied
The Magistrate's orders of 13 April 2006 are interlocutory. They do not finally determine the rights of the parties. See Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 and Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213.
Case: City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163
Outcome: distinguished
Further, the fact that the Magistrate determined that there should be an assessment of damages to be paid pursuant to the undertaking does not support the contention that leave is not required. The applicant relied on the decision of the Full Court in City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 at 173-175 as authority for that proposition. I cannot see how City of Camberwell can be so relied upon. In that case, the trial judge, by agreement with the parties, decided liability before assessing damages. He decided that the defendant was indeed liable to the plaintiff. Though he did not make orders to that effect, a "judgment" that "the issues of liability raised by the [defendant] are not to be resolved in favour of the [defendant] and it is appropriate therefore to turn to the issues between the parties as to damages" was authenticated. Marks and Gobbo JJ (Fullagar J dissenting) said at 174-175 that: "The circumstances are, in our opinion, analogous to those in Hall [v Busst [1960] HCA 84 ; (1960) 104 CLR 206] and such that it may fairly be said that the determination of the learned [trial] judge was intended as a judgment for [the plaintiff] for damages to be assessed and that therefore it is final, if not, a determination as to liability to pay damages which is final. Thus the appeal is as of right from 'a determination' within the meaning of s 10(2) of the Supreme Court Act 1986 (Vic)." Needless to say, the circumstances in this case are quite different to those in City of Camberwell . Further, the assessment of damages in this case results not from a decision on the merits as to liability (as in City of Camberwell ) but automatically upon the discharge of the mandatory injunction which was granted upon the giving of the undertaking.