mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Commissioner of Taxation v Cooke (2004) 55 ATR 183
Outcome: cited
An important feature related to the management fees is the method whereby obligations under the limited recourse loan agreements and the management agreements were met. In this respect, I am referring to the endorsing and later cancellation of the bills of exchange in the manner I have described. It was very similar to a "round robin" of cheques which, although effective as a matter of law ( Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 at 486-487 [46] - [47] ) is, as Hill J pointed out in Sleight (at 232 [77]), a feature of many tax avoidance schemes. The method by which the moneys to be paid under the limited recourse loan agreements were paid by the lender and then in turn paid to the manager was known to the members of the CECK partnership because they endorsed the bills of exchange. Even if it was unknown, as might have been the case with the applicants involved in the TVA Project because the bills of exchange were endorsed by Plutora as duly appointed agent and attorney of Civil and Earth, the method of payment is still a matter to be taken into account. Commissioner of Taxation v Consolidated Press Holdings Ltd [2001] HCA 32 ; (2001) 207 CLR 235 at 264 [95] ; Commissioner of Taxation v Cooke (2004) 55 ATR 183 at 216 [88]; Calder v Commissioner of Taxation (2005) 226 ALR 643 at 294-295 [113]-]115].
Case: Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216
Outcome: cited
The eight matters identified in s 177D(b)(i)-(viii) inclusive are exhaustive of the matters to be considered in determining whether the relevant conclusion should be drawn: Peabody v Commissioner of Taxation (1993) 40 FCR 531 (" Peabody ") at 541 per Hill J (Ryan and Cooper JJ concurring); Calder v Commissioner of Taxation (2005) 226 ALR 643 (" Calder ") at 290 [91]. Whether the relevant conclusion should be drawn is to be determined objectively in the sense that the question is not as to the taxpayer's subjective intention and purpose: Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 (" Spotless ") at 421-422, 424; Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 (" Hart ") at 223 [37], 243 [65] per Gummow and Hayne JJ; Peabody at 542; Calder at 291-292 [96]. A person may have more than one purpose and that is made clear by s 177A(5). One purpose may be a commercial purpose, but Part IVA will nevertheless apply if the other purpose was to obtain a tax benefit and that purpose was the dominant purpose: Spotless at 415-416; Hart at 227 [16] per Gleeson CJ and McHugh J; Sleight at 229-230 [67] and 238-239 [113] per Hill J (with whom Hely J agreed); Calder at 291 [92]. 263 The result that would be achieved by the schemes but for Part IVA is that each of the applicants would be entitled to substantial deductions in excess of funds actually contributed by them. That points to a dominant tax purpose: Sleight at 234 [84] per Hill J. However, it must be borne in mind that simply because a taxpayer pays less tax if one form of transaction rather than another is made does not demonstrate that Part IVA applies: Hart at 240 [53] per Gummow and Hayne JJ.
Case: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471
Outcome: cited
An important feature related to the management fees is the method whereby obligations under the limited recourse loan agreements and the management agreements were met. In this respect, I am referring to the endorsing and later cancellation of the bills of exchange in the manner I have described. It was very similar to a "round robin" of cheques which, although effective as a matter of law ( Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 at 486-487 [46] - [47] ) is, as Hill J pointed out in Sleight (at 232 [77]), a feature of many tax avoidance schemes. The method by which the moneys to be paid under the limited recourse loan agreements were paid by the lender and then in turn paid to the manager was known to the members of the CECK partnership because they endorsed the bills of exchange. Even if it was unknown, as might have been the case with the applicants involved in the TVA Project because the bills of exchange were endorsed by Plutora as duly appointed agent and attorney of Civil and Earth, the method of payment is still a matter to be taken into account. Commissioner of Taxation v Consolidated Press Holdings Ltd [2001] HCA 32 ; (2001) 207 CLR 235 at 264 [95] ; Commissioner of Taxation v Cooke (2004) 55 ATR 183 at 216 [88]; Calder v Commissioner of Taxation (2005) 226 ALR 643 at 294-295 [113]-]115].
Case: Federal Commissioner of Taxation v French [1957] HCA 73 ; (1957) 98 CLR 398
Outcome: considered
To determine the source of income one must have regard to practical considerations. In Federal Commissioner of Taxation v French [1957] HCA 73 ; (1957) 98 CLR 398, Kitto J said (at 417): "The Australian Act, in such provisions as ss 23(q) and 25, assumes that it is possible to identify, with respect to every amount of income, some activity event or thing which may properly, though metaphorically, be described as the source from which that income has been derived; and it is settled by undoubted authority that to select for the description one out of all the many elements which, as a matter of history, have together culminated in the derivation is a practical task to be performed on substantial considerations"
Case: Federal Commissioner of Taxation v Mitchum [1965] HCA 23 ; (1965) 113 CLR 401
Outcome: cited
In Nathan v Federal Commissioner of Taxation [1918] HCA 45 ; (1918) 25 CLR 183 at 189-190, the High Court said that in using the word "source" Parliament was not using a legal concept but something which a practical man would regard as "a real source of income" and that the actual source of a given income is "a practical, hard matter of fact". See also Federal Commissioner of Taxation v Mitchum [1965] HCA 23 ; (1965) 113 CLR 401 at 407.
Case: Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404
Outcome: cited
The eight matters identified in s 177D(b)(i)-(viii) inclusive are exhaustive of the matters to be considered in determining whether the relevant conclusion should be drawn: Peabody v Commissioner of Taxation (1993) 40 FCR 531 (" Peabody ") at 541 per Hill J (Ryan and Cooper JJ concurring); Calder v Commissioner of Taxation (2005) 226 ALR 643 (" Calder ") at 290 [91]. Whether the relevant conclusion should be drawn is to be determined objectively in the sense that the question is not as to the taxpayer's subjective intention and purpose: Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 (" Spotless ") at 421-422, 424; Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 (" Hart ") at 223 [37], 243 [65] per Gummow and Hayne JJ; Peabody at 542; Calder at 291-292 [96]. A person may have more than one purpose and that is made clear by s 177A(5). One purpose may be a commercial purpose, but Part IVA will nevertheless apply if the other purpose was to obtain a tax benefit and that purpose was the dominant purpose: Spotless at 415-416; Hart at 227 [16] per Gleeson CJ and McHugh J; Sleight at 229-230 [67] and 238-239 [113] per Hill J (with whom Hely J agreed); Calder at 291 [92].
Case: Federal Commissioner of Taxation v United Aircraft Corporation [1943] HCA 49 ; (1943) 68 CLR 525
Outcome: considered
In Federal Commissioner of Taxation v United Aircraft Corporation [1943] HCA 49 ; (1943) 68 CLR 525, Latham CJ said (at 536): "Income derived from property means, in my opinion, income derived from the property of the person sought to be taxed as having derived the income. So also the income of a person derived from acts done is income derived by that person from his own acts or from the acts of his servants or agents. If such a person, being a company, has no servants or agents in Australia, it cannot, in my opinion, derive income from any acts done in Australia. A person who neither owns anything in a country nor does nor has done anything in that country cannot, in my opinion, derive income from that country."
Case: Nathan v Federal Commissioner of Taxation [1918] HCA 45 ; (1918) 25 CLR 183
Outcome: considered
In Nathan v Federal Commissioner of Taxation [1918] HCA 45 ; (1918) 25 CLR 183 at 189-190, the High Court said that in using the word "source" Parliament was not using a legal concept but something which a practical man would regard as "a real source of income" and that the actual source of a given income is "a practical, hard matter of fact". See also Federal Commissioner of Taxation v Mitchum [1965] HCA 23 ; (1965) 113 CLR 401 at 407.
Case: Peabody v Commissioner of Taxation (1993) 40 FCR 531
Outcome: cited
The eight matters identified in s 177D(b)(i)-(viii) inclusive are exhaustive of the matters to be considered in determining whether the relevant conclusion should be drawn: Peabody v Commissioner of Taxation (1993) 40 FCR 531 (" Peabody ") at 541 per Hill J (Ryan and Cooper JJ concurring); Calder v Commissioner of Taxation (2005) 226 ALR 643 (" Calder ") at 290 [91]. Whether the relevant conclusion should be drawn is to be determined objectively in the sense that the question is not as to the taxpayer's subjective intention and purpose: Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 (" Spotless ") at 421-422, 424; Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 (" Hart ") at 223 [37], 243 [65] per Gummow and Hayne JJ; Peabody at 542; Calder at 291-292 [96]. A person may have more than one purpose and that is made clear by s 177A(5). One purpose may be a commercial purpose, but Part IVA will nevertheless apply if the other purpose was to obtain a tax benefit and that purpose was the dominant purpose: Spotless at 415-416; Hart at 227 [16] per Gleeson CJ and McHugh J; Sleight at 229-230 [67] and 238-239 [113] per Hill J (with whom Hely J agreed); Calder at 291 [92].
Case: Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39
Outcome: distinguished
analysis, that reliance can be seen to be misconceived, for the following reasons: (a) Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39. The foundation for the injunctive relief sought in that case under s 475 was an alleged breach of s 12 of the Act. An element of s 12 is that the action concerned either have a significant impact on world heritage values or be likely to have such an impact in respect of a declared world heritage property. In contrast, "significant impact" is - unless it has in some way in the wording of a condition in a particular case, and this is not one of no relevance at all in respect of whether there has been a contravention of a condition of the kind with which s 142 is concerned. (b) Minister for the Environment and Heritage v Greentree (No 2) [2004] FCA 741 ; (2004) 138 FCR 198. In that case, the injunctive relief sought pursuant to s 475 had as its foundation an alleged breach of s 16 of the Act as read with s 17. Regard to s 16 discloses that it, too, has a "significant impact" element akin to that found in s 12, but in this instance focused upon the ecological character of a declared RAMSAR wetland. For reasons already given in respect of Booth [2001] FCA 1453 ; 114 FCR 39 , "significant impact" has no role to play here in relation to the alleged breach of the condition and hence a contravention of s 142. (c) Brown v Forestry Tasmania (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1. In this case, the alleged contravention grounding injunctive relief was a contravention of s 18 of the Act. Regard to that section discloses that it, too, has a "significant impact" element, on this occasion related to listed threatened species included in the "extinct in the wild" category. Again, for reasons given in relation to Booth [2001] FCA 1453 ; 114 FCR 39 , "significant impact" has no role to play in this case in relation to s 142.
Case: Brown v Forestry Tasmania (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1
Outcome: distinguished
analysis, that reliance can be seen to be misconceived, for the following reasons: (a) Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39. The foundation for the injunctive relief sought in that case under s 475 was an alleged breach of s 12 of the Act. An element of s 12 is that the action concerned either have a significant impact on world heritage values or be likely to have such an impact in respect of a declared world heritage property. In contrast, "significant impact" is - unless it has in some way in the wording of a condition in a particular case, and this is not one of no relevance at all in respect of whether there has been a contravention of a condition of the kind with which s 142 is concerned. (b) Minister for the Environment and Heritage v Greentree (No 2) [2004] FCA 741 ; (2004) 138 FCR 198. In that case, the injunctive relief sought pursuant to s 475 had as its foundation an alleged breach of s 16 of the Act as read with s 17. Regard to s 16 discloses that it, too, has a "significant impact" element akin to that found in s 12, but in this instance focused upon the ecological character of a declared RAMSAR wetland. For reasons already given in respect of Booth [2001] FCA 1453 ; 114 FCR 39 , "significant impact" has no role to play here in relation to the alleged breach of the condition and hence a contravention of s 142. (c) Brown v Forestry Tasmania (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1. In this case, the alleged contravention grounding injunctive relief was a contravention of s 18 of the Act. Regard to that section discloses that it, too, has a "significant impact" element, on this occasion related to listed threatened species included in the "extinct in the wild" category. Again, for reasons given in relation to Booth [2001] FCA 1453 ; 114 FCR 39 , "significant impact" has no role to play in this case in relation to s 142.
Case: Minister for the Environment and Heritage v Greentree (No 2) [2004] FCA 741 ; (2004) 138 FCR 198
Outcome: distinguished
analysis, that reliance can be seen to be misconceived, for the following reasons: (a) Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39. The foundation for the injunctive relief sought in that case under s 475 was an alleged breach of s 12 of the Act. An element of s 12 is that the action concerned either have a significant impact on world heritage values or be likely to have such an impact in respect of a declared world heritage property. In contrast, "significant impact" is - unless it has in some way in the wording of a condition in a particular case, and this is not one of no relevance at all in respect of whether there has been a contravention of a condition of the kind with which s 142 is concerned. (b) Minister for the Environment and Heritage v Greentree (No 2) [2004] FCA 741 ; (2004) 138 FCR 198. In that case, the injunctive relief sought pursuant to s 475 had as its foundation an alleged breach of s 16 of the Act as read with s 17. Regard to s 16 discloses that it, too, has a "significant impact" element akin to that found in s 12, but in this instance focused upon the ecological character of a declared RAMSAR wetland. For reasons already given in respect of Booth [2001] FCA 1453 ; 114 FCR 39 , "significant impact" has no role to play here in relation to the alleged breach of the condition and hence a contravention of s 142. (c) Brown v Forestry Tasmania (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1. In this case, the alleged contravention grounding injunctive relief was a contravention of s 18 of the Act. Regard to that section discloses that it, too, has a "significant impact" element, on this occasion related to listed threatened species included in the "extinct in the wild" category. Again, for reasons given in relation to Booth [2001] FCA 1453 ; 114 FCR 39 , "significant impact" has no role to play in this case in relation to s 142.
Case: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900
Outcome: cited
broad factual background to the proceedings is described in an earlier interlocutory judgment which I gave on 12 December 2008, Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900. The most convenient way to deal with the challenge made is, first, to make some particular comments on the general submission advanced on behalf of the Conservation Council: that the paragraphs under challenge were factors going to the exercise of a discretion to grant injunctive relief, and therefore necessarily pleaded in the statement of claim so as to avoid Burnett Water being taken by surprise. In that regard, a number of decisions of this Court in which a question of the granting of injunctive relief under s 475 of the Act were relied upon.
Case: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 2) [2009] FCA 237
Outcome: cited
practice application is a sequel to an order which I made on 18 March 2009 striking out the then existing statement of claim for reasons which I then published: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 2) [2009] FCA 237. Having so done, I granted leave to the Wide Bay Burnett Conservation Council Inc (Conservation Council) to file and serve an amended statement of claim. In today's application, Burnett Water Pty Ltd (Burnett Water) seeks the following orders in respect of the amended statement of claim: that paras 35 - 43, 45, 46 - 90 and 96 - 98 be struck out. In Professor Cairns' work, Australian Civil Procedure (6 th Ed) at page 160, the following statement is made in respect of the Australian position relative to the system of pleadings which developed in England following the Judicature Act 1875 (UK) (Judicature Act) reforms: The same system was later introduced into the Australian jurisdictions. The system of pleading initiated by the Judicature Act 1875 is still in force, although with some modifications. Supreme Courts in the Australian States and Territories are courts of unlimited jurisdiction. Their rules adopt the procedural concepts of the 1883 revision of the English rules of 1875. That particular observation made by Professor Cairns commended itself to the authors of Bullan and Leake and Jacob's Precedents of Pleadings (16 th Ed) at para 1-08 as a good background in respect of the Australian position. Professor Cairns, in the paragraph quoted, speaks of the position in relation to the Supreme Courts of the States and Territories. Whilst a purist might these days debate the proposition as to whether or not truly those courts are courts of unlimited jurisdiction, having regard to the impact of Federal statute law conferring exclusive jurisdictions on this Court, the proposition about the taking up of the Judicature Act rules which Professor Cairns makes in respect of the Supreme Courts, has, so far as the essence of the pleading rule in this court is concerned, equal resonance. By that I mean that in O 11 r 2 one finds familiar language having regard to post-Judicature Act pleading rules. That rule provides as follows: Subject to these rules: (a) a pleading of a party shall contain and contain only a statement in summary form of the material facts on which the party relies but not the evidence by which those facts are to be proved. Order 11, rule 16 of this Court's rules provides: Where a pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or (c) is otherwise an abuse of process of the court, the court may at any stage of the proceeding order that the whole or any part of the pleading be struck out. It is under this rule that Burnett Water seeks the striking out of the paragraphs identified.
Case: Glass v Demarco [1999] FCA 482
Outcome: cited
In Glass v Demarco [1999] FCA 482 , a bankruptcy petition was before the court. The debtor filed an affidavit in which he gave evidence about an offer of compromise in another court proceeding. Objection was taken by the petitioning creditor to the admissibility of that evidence who relied on s 131(1) of the Evidence Act . The debtor relied on s 131(2)(i) of the Evidence Act . At par [10] Emmett J said: "... The contention, as I understand it, is that a right of the debtor is affected by the offer because the debtor, by reason of the offer, has a right to accept it and thereby create a contract of compromise. I consider that the reference to a right in s131(2)(i) is to an existing right and it is not satisfied by reason of a right coming into existence upon the making of an offer." Although it might be said that the plaintiff had at the date of the conciliation conference rights by virtue of his position as a director of the defendants, that right was not affected by the making of the communications in respect of which the plaintiff wishes to adduce evidence.
Case: Talbot v NRMA Limited [2000] NSW SC 602
Outcome: cited
In Talbot v NRMA Limited [2000] NSWSC 602 , Hodgson CJ in Eq said at par [3]: "Mr Shand has referred me to s 121(3) of the Evidence Act , which states that privilege would not prevent the producing of evidence of a communication or document which affects the rights of a person. In my opinion, that cannot mean a communication or document that is relevant to a right of a person because that would virtually eliminate the legal professional privilege as a ground for non-admission of evidence. In my opinion, that must mean a communication or document that affects in some fairly direct way what are the actual rights and perhaps also duties of a person." I consider that these observations apply equally to the communications in respect of which the plaintiff wishes to adduce evidence. They do not affect in any direct way the actual rights of the plaintiff. 35 I do not consider that subpar (j) of s 131(2) is of any assistance to the plaintiff. Notwithstanding the provisions of subs (3) of s 131 , I am not satisfied that the circumstances identified by the plaintiff form any basis for suggesting that the communications in respect of which the plaintiff wishes to adduce evidence and the document which was handed to his legal advisers were made or prepared in furtherance of the commission of a fraud or of an offence or the commission of an act that rendered any person liable to a civil penalty. There is not sufficient evidence before me upon which I could form even a tentative or preliminary view that Ms Asciak was seeking to commit a fraud or an offence or an act that rendered her liable to a civil penalty. 36 The plaintiff relied in his written submissions on subpar (k) of s 131(2) of the Evidence Act . This was not addressed in oral submissions and there is no material before me upon which it could apply.
Case: Stewart v Normandy NFM Ltd [2000] SASC 344
Outcome: cited
A difficulty facing the plaintiff, which is relevant to the determination of the question whether he is proposing in good faith to bring the proceeding in the Family Court, is whether he is able at the present time to establish the factual background or foundation for his application otherwise than by unsubstantiated assertions: see Stewart v Normandy NFM Ltd (2000) 211 LSJS 41 at par [10]; Boulos v Carter (2005) 220 ALR 572 at par [31].
Case: Boulos v Carter (2005) 220 ALR 572
Outcome: cited
A difficulty facing the plaintiff, which is relevant to the determination of the question whether he is proposing in good faith to bring the proceeding in the Family Court, is whether he is able at the present time to establish the factual background or foundation for his application otherwise than by unsubstantiated assertions: see Stewart v Normandy NFM Ltd (2000) 211 LSJS 41 at par [10]; Boulos v Carter (2005) 220 ALR 572 at par [31].