mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Trustees Executors and Agency Company Ltd v Reilly [1941] ALR 105
Outcome: referred to
The words ' in respect of' which appear in s 58(3)(b) have been considered judicially: see for example Re McMaster; ex parte McMaster (1991) 33 FCR 70 at 72 and in Trustees Executors and Agency Company Ltd v Reilly [1941] ALR 105 at 106. Such authorities refer to the wide scope of the words ' in respect of' as contained in the relevant subsection. The Court is satisfied that for the purposes of s 58(3)(b) of the Act the claim the subject of the Supreme Court proceedings falls within the purview of s 82 and that the Supreme Court proceedings are in respect of a provable debt. As such this is a proper case for an application for leave under s 58(3)(b) of the Act.
Case: Miller v Wertheim [2002] FCAFC 156
Outcome: referred to
The applicant submitted that 'Jews in Australia comprise a group of people with an 'ethnic origin' for the purposes of the Act...'. In support of that proposition, the applicant relied on Miller v Wertheim [2002] FCAFC 156 at [14] , where Heerey, Lindgren and Merkel JJ observed as follows: '... it can be readily accepted that Jewish people in Australia can comprise a group of people with an "ethnic origin" for the purposes of the Act (see King-Ansell v Police [1979] 2 NZLR 531)....' I agree with that submission by the applicant, and find that Jews in Australia are a group of people with a common "ethnic origin" within the meaning of s 18C of the RD Act.
Case: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68
Outcome: cited
It should be recalled that context is not merely the Act as a whole, including its text and structure, but context "in its widest sense": CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408. The relevant words are considered by reference to the language of the statute as a whole in their legal and historical context having regard to the evident aim and purpose of the legislation and provision in question, to any canons of legal construction and to any inconvenience or improbability of result of any given construction. Fundamental to the task is the giving of close attention to the text and structure of the relevant provisions as to the words used by Parliament: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68 at [36] and the cases there cited, and Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Limited [2005] HCA 20 ; (2005) 220 CLR 592 at [50] .
Case: Brennan v R [1936] HCA 24 ; (1936) 55 CLR 253 
Outcome: referred to
The respondent relied upon the notion that Division 170 was a code and that care should be exercised in having recourse to the pre-existing law when construing it. Reference was made in this respect to Brennan v R [1936] HCA 24 ; (1936) 55 CLR 253 at 263. In this respect, however, the terms of s 1 - 3 of the ITAA 1997 are to be recalled, in particular since Division 170 can be seen to have a precursor, redrafted in different style, in s 80G of the ITAA 1936. 64 On the assumption that the applicants are correct as to the meaning of s 170- 10 , and in particular as to the meaning of the phrase "part of the tax loss", the respondent submits (and reasoned in his disallowance of the objection) that KSL as the income company does not meet the condition in s 170-40(2). 65 It was common ground that the loss company, KYC, satisfied all conditions in subdivision 170-A. In particular the matters set out in s 170- 35 , and through it, Subdivision 165-A. The satisfaction of Subdivision 165-A arose from the fact that the continuity of business test in s 165- 13 was not failed, even though the continuity of ownership test in s 165- 12 was failed.
Case: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384
Outcome: cited
It should be recalled that context is not merely the Act as a whole, including its text and structure, but context "in its widest sense": CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408. The relevant words are considered by reference to the language of the statute as a whole in their legal and historical context having regard to the evident aim and purpose of the legislation and provision in question, to any canons of legal construction and to any inconvenience or improbability of result of any given construction. Fundamental to the task is the giving of close attention to the text and structure of the relevant provisions as to the words used by Parliament: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68 at [36] and the cases there cited, and Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Limited [2005] HCA 20 ; (2005) 220 CLR 592 at [50] .
Case: Commissioner of Taxation of the Commonwealth of Australia v Murry [1998] HCA 42 ; (1998) 193 CLR 605 
Outcome: cited
Thus, I agree with the thrust of the applicants' submission in this regard that provisions such as Division 170 should not be narrowly construed and should be interpreted to promote the purpose or object underlying the Division which can be seen as the purpose and object of s 80G of the ITAA 1936. That does not mean, however, that provisions are given a meaning which they do not bear. Rather, no narrow approach is to be taken, and the beneficial purpose is to be borne in mind in ascribing the meaning to words used: Commissioner of Taxation of the Commonwealth of Australia v Murry [1998] HCA 42 ; (1998) 193 CLR 605 at 632; Federal Commissioner of Taxation v Top of the Cross Pty Ltd (1981) 37 ALR 623 at 633; Plessey Australia Pty Ltd v Federal Commissioner of Taxation (1989) 89 ALR 395 at 400; and Federal Commissioner of Taxation v Reynolds Australia Alumnia Ltd (1987) 77 ALR 543 at 549 and 560.
Case: Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Limited [2005] HCA 20 ; (2005) 220 CLR 592
Outcome: cited
It should be recalled that context is not merely the Act as a whole, including its text and structure, but context "in its widest sense": CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408. The relevant words are considered by reference to the language of the statute as a whole in their legal and historical context having regard to the evident aim and purpose of the legislation and provision in question, to any canons of legal construction and to any inconvenience or improbability of result of any given construction. Fundamental to the task is the giving of close attention to the text and structure of the relevant provisions as to the words used by Parliament: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68 at [36] and the cases there cited, and Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Limited [2005] HCA 20 ; (2005) 220 CLR 592 at [50] .
Case: Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73 ; (2004) 137 FCR 146 
Outcome: cited
The respondent submitted that it was "doubtful" whether Division 170 should be characterised as relieving legislation, "rather than providing a statutory regime for the transfer of losses within a corporate group where certain conditions are satisfied." Looking at its history and provenance, it is tolerably clear that the aim of Division 170 is to provide a benefit to taxpayers by relieving them from the logical consequences of individual legal personality. Its precursor, s 80G, was intended to be beneficial to the taxpayer Harts [2001] FCA 761 ; 109 FCR 405 at [18] and Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73 ; (2004) 137 FCR 146 at 193 [141] . Its aim was, broadly, to align the treatment of company groups with divisions in companies: Asiamet (No 1) Resources 137 FCR at 193 [142]. But that is to be seen as effected by the statutory language employed, and no further.
Case: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 
Outcome: cited
Thirdly, it was submitted that s 170- 15 (1) was a deeming provision and thus should be construed strictly: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96. The respondent submitted that the applicants were attempting to give s 170- 15 more work to do than it bore. In particular, this criticism was made of [31] and [32] of the applicants' submissions. 72 The applicants submitted that all these submissions of the respondent rest on the primary or first issue whether Division 170 provides in its terms for transfer of part of a loss which is incurred in part of a year. If it is, all the arguments about s 170-40(2) collapse in on themselves. 73 I think there is force in this last submission. Ultimately, there is one issue: Does Division 170 contemplate as part of its operation the transfer between companies in a group to which the Division applies part of a tax loss for a year which is referable to part of that year?
Case: Federal Commissioner of Taxation v Reynolds Australia Alumnia Ltd (1987) 77 ALR 543 
Outcome: cited
Thus, I agree with the thrust of the applicants' submission in this regard that provisions such as Division 170 should not be narrowly construed and should be interpreted to promote the purpose or object underlying the Division which can be seen as the purpose and object of s 80G of the ITAA 1936. That does not mean, however, that provisions are given a meaning which they do not bear. Rather, no narrow approach is to be taken, and the beneficial purpose is to be borne in mind in ascribing the meaning to words used: Commissioner of Taxation of the Commonwealth of Australia v Murry [1998] HCA 42 ; (1998) 193 CLR 605 at 632; Federal Commissioner of Taxation v Top of the Cross Pty Ltd (1981) 37 ALR 623 at 633; Plessey Australia Pty Ltd v Federal Commissioner of Taxation (1989) 89 ALR 395 at 400; and Federal Commissioner of Taxation v Reynolds Australia Alumnia Ltd (1987) 77 ALR 543 at 549 and 560.
Case: Federal Commissioner of Taxation v Top of the Cross Pty Ltd (1981) 37 ALR 623 
Outcome: cited
Thus, I agree with the thrust of the applicants' submission in this regard that provisions such as Division 170 should not be narrowly construed and should be interpreted to promote the purpose or object underlying the Division which can be seen as the purpose and object of s 80G of the ITAA 1936. That does not mean, however, that provisions are given a meaning which they do not bear. Rather, no narrow approach is to be taken, and the beneficial purpose is to be borne in mind in ascribing the meaning to words used: Commissioner of Taxation of the Commonwealth of Australia v Murry [1998] HCA 42 ; (1998) 193 CLR 605 at 632; Federal Commissioner of Taxation v Top of the Cross Pty Ltd (1981) 37 ALR 623 at 633; Plessey Australia Pty Ltd v Federal Commissioner of Taxation (1989) 89 ALR 395 at 400; and Federal Commissioner of Taxation v Reynolds Australia Alumnia Ltd (1987) 77 ALR 543 at 549 and 560.
Case: Harts Australia Ltd v Commissioner of Taxation [2001] FCA 761 ; (2001) 109 FCR 405
Outcome: referred to
The applicants submitted that what Drummond J said was being taken out of context. I think there is force in that criticism. On appeal from Drummond J, the Full Court set aside the answers given to a separate determination of questions ( Harts Australia Ltd v Commissioner of Taxation [2001] FCA 761 ; (2001) 109 FCR 405). In so doing Merkel J (with whom Lee J and Finn J concurred) made a number of relevant points: (a) An agreement to comply with s 80G(6)(c) must be in relation to an amount that is fixed and identifiable in the sense that it is ascertainable. (b) The general purpose and policy of these provisions is beneficial to the taxpayer and thus a liberal, rather than a narrow or technical approach, is to be taken to the construction of s 80G. (c) The amount need not be quantified and specified in the agreement, but it must be fixed and ascertainable. 60 Fourthly, the applicants submitted that Division 170 is relieving legislation. This submission was supported by the terms of the second reading speech for the earlier legislation in the Income Tax Assessment Bill (No 4) 1984 that the purpose was to assist taxpayers and stimulate business activity. It was also supported by the expression of view by the Full Court in Harts [2001] FCA 761 ; 109 FCR 405 at [18] . 61 The respondent submitted that it was "doubtful" whether Division 170 should be characterised as relieving legislation, "rather than providing a statutory regime for the transfer of losses within a corporate group where certain conditions are satisfied." Looking at its history and provenance, it is tolerably clear that the aim of Division 170 is to provide a benefit to taxpayers by relieving them from the logical consequences of individual legal personality. Its precursor, s 80G, was intended to be beneficial to the taxpayer Harts [2001] FCA 761 ; 109 FCR 405 at [18] and Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73 ; (2004) 137 FCR 146 at 193 [141] . Its aim was, broadly, to align the treatment of company groups with divisions in companies: Asiamet (No 1) Resources 137 FCR at 193 [142]. But that is to be seen as effected by the statutory language employed, and no further.
Case: Harts Australia Pty Ltd v Commissioner of Taxation 2000 ATC 4566
Outcome: referred to
In support of this use of s 80G(6)(c) and (13), the respondent referred to a passage in the reasons of Drummond J in Harts Australia Pty Ltd v Commissioner of Taxation 2000 ATC 4566 at [11] in which his Honour said: "Section 80G(6)(c) requires agreement that there is to be a transfer of this right to an allowable deduction under s 80(2) "in respect of so much of the whole or part of" the loss the subject of the right to that deduction. What can be transferred under s 80G is company A's right to deduct that dollar amount, to the extent of the whole of it or a part only of it. An agreement to transfer the loss company's right to a deduction under s 80(2) in respect of the whole of its loss deductible under that section must necessarily refer to a loss of a particular dollar amount that is then, ie, at the date of the agreement, identifiable, even if that dollar amount is not itself recorded in the agreement. An agreement to transfer the loss company's right to a deduction under s 80(2) in respect of part only of that loss must identify the part of the then identifiable dollar amount of the entire loss that is the subject of the agreement; prima facie, that could be done by recording in the agreement either the dollar amount of that part of the fraction of the then identifiable dollar amount of the whole of the loss, that is the subject of the transfer agreement." [emphasis in respondent's submissions] 58 Reference was also made to the later judgment of Heerey J (2001 ATC 4394). 59 The applicants submitted that what Drummond J said was being taken out of context. I think there is force in that criticism. On appeal from Drummond J, the Full Court set aside the answers given to a separate determination of questions ( Harts Australia Ltd v Commissioner of Taxation [2001] FCA 761 ; (2001) 109 FCR 405). In so doing Merkel J (with whom Lee J and Finn J concurred) made a number of relevant points: (a) An agreement to comply with s 80G(6)(c) must be in relation to an amount that is fixed and identifiable in the sense that it is ascertainable. (b) The general purpose and policy of these provisions is beneficial to the taxpayer and thus a liberal, rather than a narrow or technical approach, is to be taken to the construction of s 80G. (c) The amount need not be quantified and specified in the agreement, but it must be fixed and ascertainable.
Case: Plessey Australia Pty Ltd v Federal Commissioner of Taxation (1989) 89 ALR 395
Outcome: cited
Thus, I agree with the thrust of the applicants' submission in this regard that provisions such as Division 170 should not be narrowly construed and should be interpreted to promote the purpose or object underlying the Division which can be seen as the purpose and object of s 80G of the ITAA 1936. That does not mean, however, that provisions are given a meaning which they do not bear. Rather, no narrow approach is to be taken, and the beneficial purpose is to be borne in mind in ascribing the meaning to words used: Commissioner of Taxation of the Commonwealth of Australia v Murry [1998] HCA 42 ; (1998) 193 CLR 605 at 632; Federal Commissioner of Taxation v Top of the Cross Pty Ltd (1981) 37 ALR 623 at 633; Plessey Australia Pty Ltd v Federal Commissioner of Taxation (1989) 89 ALR 395 at 400; and Federal Commissioner of Taxation v Reynolds Australia Alumnia Ltd (1987) 77 ALR 543 at 549 and 560.
Case: Adultshop.com Ltd v Members of the Classification Review Board (No 2) (2000) FCA 1872
Outcome: referred to
In Adultshop.com Ltd v Members of the Classification Review Board (No 2 ) (2000) FCA 1872 at [23] - [31] , I referred briefly to the principles which apply in the exercise of the Court's discretion to make an order under s 50. I observed at [28] of my reasons in that case that the Court will respect legitimate claims for confidentiality which should not be unduly discounted in the weighing process when balancing the claim for confidentiality against the countervailing public interest in open justice. 56 In the present case it is sufficient to say that an order under s 50 is warranted for the time being because of the conditions subsequent referred to in the Deed of Settlement. As I have said previously, I do not think it is necessary for me to refer to them in my reasons for judgment, but I have considered them carefully and I do think that the weighing process in the present case points in favour of upholding the claim for confidentiality. The Deed of Settlement itself contains a confidentiality clause in cl 16. 57 In summary, I think it is sufficient to say that disclosure of the pertinent provisions of Mr McGrath's affidavit which exposed his reasoning process would seriously prejudice the liquidators in the event that Mr Selim and the Commonwealth have access to the views which Mr McGrath has expressed in his affidavit. 58 For these reasons, I propose to make the direction set out in [1] of the draft order handed to me this morning by Senior Counsel for the liquidators. I also propose to make orders in terms of [2], [3] and [4]. Order 4 reserves liberty to apply. It may be appropriate in due course for the orders under s 50 to be reviewed in light of subsequent developments in the litigation. 59 I have given this judgment in closed court pursuant to s 17(4) of the Federal Court Act . However, having now heard from Mr Nixon who has fairly conceded that the order under s 17(4) need not be continued, I will dissolve that order and direct that my reasons for judgment may be published. 60 I will leave in force the order under s 17(4) insofar as it applies to the transcript of the application that was made before me this morning. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 7 May 2008 Counsel for the Applicant: Mr J Sheahan QC with Mr S Nixon Solicitor for the Applicant: Blake Dawson Date of Hearing: 23 April 2008 Date of Judgment: 23 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/563.html
Case: Campbells Cash &amp; Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386
Outcome: referred to
It seems to me to follow from what was said by Lee J and from the various authorities to which his Honour referred that in the present case the proposed assignment of the causes of action is within the power of the liquidator. See also the comparatively recent decision of the High Court in Campbells Cash &amp; Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386.
Case: Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 141 ALR 667
Outcome: applied
In Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 141 ALR 667 a Full Court dealt with a similar question arising under the Bankruptcy Act . The Court observed at 682, upon the basis of English and Australian authorities, that it is only in a clear case that the Court should come to the view that the proposed assignment is frivolous or vexatious or that the Court should not allow the assignment to occur. 41 Their Honours pointed to the observations of Lord Hoffman in the English decision in Stein v Blake (1996) 1 AC 243 at 260. The relevant passage was set out by the Full Court in Citicorp at 681. It is unnecessary to repeat what Lord Hoffman said in that passage. 42 The observations of the Full Court in Citicorp at 679 are also pertinent. Their Honours observed that there will be few cases where some decisive point exists on which the trustee or the Court can be satisfied that the claim which is proposed to be assigned has no reasonable prospects of success. 43 In the present case it is relevant to note, as I have already, that the cross-claims brought by Mr Selim against the Commonwealth and the TGA offices were the subject of a strikeout application but that the Commonwealth ultimately determined not to pursue that application after amendments were made to the pleadings. 44 In those circumstances, it seems to me to be the position that it is not clear and obvious that any proceeding in respect of the cause of action against the Commonwealth would have no reasonable prospects of success. Accordingly, there is no basis for me to conclude that the assignment of the causes of action to Mr Selim would result in vexatious or improper litigation, so the assignment cannot be said to be an inappropriate exercise of the liquidator's powers. 45 There are a number of other reasons why it seems to me that the liquidators are justified in assigning the causes of action to Mr Selim. It is not necessary to state them in any detail. I have referred to some of them above but in summary there are three principal reasons. 46 First, the proceedings would be lengthy and expensive and if they proceed to a final hearing there is always the risk of the insolvent estate of Pan being exposed to a substantial costs order in the event that the claims against Mr Selim fail.
Case: Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 24 ACSR 79
Outcome: referred to
The Court's power to give directions pursuant to s 511 is subject to the provisions of s 511(2). The Court must be satisfied that the determination of the question or the exercise of the power will be "just and beneficial" before it accedes to an application. In Re ACN 007 537 000 Pty Ltd (in liq); Ex parte Parker (1997) 150 ALR 92 at 97, Mansfield J referred with approval to the decision of Young J in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 24 ACSR 79. Mansfield J quoted a passage from the judgment of Young J in which his Honour observed that the meaning of the words "just and beneficial" are that the Court has a discretion as to whether making any order under the section will be of advantage to the liquidation.
Case: UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 251
Outcome: referred to
One of the powers which the Court might exercise if Pan were being wound up by the Court is the power to apply to the Court for directions in relation to any particular matter arising under the winding up. This Court has previously heard and granted similar applications under both ss 479(3) and 511(1). A useful example of this is the decision of Lee J in Bank of Melbourne Ltd v HPM Pty Ltd (in liq) (1997) 26 ACSR 110. See also the decision of Hansen J in UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 251 , affirmed on appeal by the Court of Appeal in (1996) 21 ACSR 457 (per Hayne JA, Brooking and Phillips JJA concurring).