mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Richardson v Federal Commissioner of Taxation [1932] HCA 67 ; (1932) 48 CLR 192
Outcome: referred to
fact that a tax liability remains outstanding against two taxpayers pending the ascertainment of the taxpayer truly liable is no bar to the exercise of the power to assess both to tax in respect of the same income. As Dixon J, as his Honour then was, observed in Richardson v Federal Commissioner of Taxation [1932] HCA 67 ; (1932) 48 CLR 192 at 207 when upholding the validity of an assessment to tax against a second person while the first person's assessment remained on foot and unamended 'it was not unnatural that [the Commissioner] should delay relieving one of two persons whom he considered culpable until the liability of the other was established'. The co-existence of tax liabilities in two or more taxpayers in respect of the same income is, as Dixon J observed at 207, attended with difficulty. Sometimes the difficulty will be removed by the objection, review and appeal procedures where the taxpayer will establish the facts in order to establish that the assessment is excessive (per Brennan J in Richard Walter at 201).
Case: Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688
Outcome: cited
The provisions of s 601AH(2) have the effect, relevant to this case, that the Court must be satisfied that the ACCC is a person aggrieved by the deregistration and that it is just that the registration be reinstated. The application of those statutory requirements was considered by Austin J in similar circumstances in Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688. In that case the ACCC submitted that it had a public duty to improve competition and efficiency in markets and to foster a fair and competitive operating environment for businesses. One of the strategies used to achieve that objective is litigation in cases of serious breaches of the TP Act. The ACCC considered, in that case, that the conduct which it alleged was a serious example of price fixing and market sharing and that it had a duty in the public interest to reinstate and sue the perpetrator of some of that conduct. The former officers of the company then before the Court accepted that the ACCC had standing to apply as did his Honour. 10 In relation to standing, the present case is relevantly indistinguishable from that before Austin J. I find that the ACCC has the necessary interest in proceeding against the company in the discharge of its statutory functions such that it is "a person aggrieved by the deregistration" for the purposes of s 601AH(2). 11 In the case before Austin J the company whose reinstatement was sought had been placed in liquidation by a members' voluntary winding up. In the present case the company was voluntarily deregistered. A director of the company made a declaration of solvency on 7 December 2005 under s 601AA(2).
Case: Hayden v Teplitzky (1997) 74 FCR 7
Outcome: cited
Although the matter may be arguable, and I would not wish to detract in any way from the duty of a party applying for an order ex parte to make full disclosure to the Court (see Hayden v Teplinsky (1997) 74 FCR 7 at 12), I do not think that it was incumbent on Mr Hamilton to disclose on the application he made on 26 February 2007, that the deponent on whom reliance was placed had engaged in that fraudulent conduct some 13 years earlier. It is easy with the benefit of hindsight, and, in particular, with the benefit of the evidence of the version of events that Mr Yii subsequently gave, to question whether Mr Parsons was telling the truth in his two affidavits. However, at the times when those affidavits were filed and read, there was no reason for the applicants to think that his account was not or might not be true. The factual circumstances of some 13 years earlier had, of course, no connection with the factual circumstances touching the dealings between Mr Parsons and Mr Yii in 2006: they go only to the credit of Mr Parsons. In any event, according to the evidence, all that Mr Hamilton knew was that Mr Parsons had been convicted of fraud of some kind in the early 1990s and had served some time in gaol. Mr Hamilton did not know the nature or degree of seriousness of the fraudulent conduct or the length of the period of imprisonment. 73 In relation to the second matter, likewise I do not think that the applicants for the freezing order were obliged to draw the Court's attention to cl 14(a). It was not relevant to the application for the freezing order that Newpage and Mr Yii had undertaken to a non-party, Lewis, not to dispose of assets. 74 Have the applicants shown that there is a serious question to be tried as to whether Mr Yii will be found on the final hearing to be liable to reimburse Newpage to the extent of $2,137,000? If so, have they shown that there is a risk of dissipation of Mr Yii's assets which would frustrate an order that he reimburse Newpage to that extent.
Case: Thomas A Edison Ltd v Bullock [1912] HCA 72 ; (1912) 15 CLR 679
Outcome: cited
The obligation on an applicant for an order on a hearing ex parte is usually expressed as an obligation to bring to the Court's attention all 'material' facts, that is to say, all facts material to the decision whether to grant the relief: cf Thomas A Edison Ltd v Bullock [1912] HCA 72 ; (1912) 15 CLR 679 at 681-2 per Isaccs J; and see Biscoe P, Mareva and Anton Piller Orders: Freezing and Search Orders (LexisNexis Butterworths, 2005) at [6.44] [6.56], and cases there cited. 71 The conviction and sentence were in respect of transactions that occurred between May and August of 1994. They concerned frauds perpetrated by Mr Parsons on five Victorian newsagents. Mr Parsons obtained from these five people cheques totalling over $160,000 by various false pretences. In substance, he procured the newsagents to make out cheques in favour of his company on the promise that the funds would be used to procure paper from a supplier in South East Asia, for the sale of which his company already had contracts in place with large and reputable buyers in the districts in which the newsagents were carrying on their businesses. In fact, no orders for paper were placed, no supplies of paper in commercial quantities were ever imported, and the funds were squandered. Mr Parsons told a variety of lies to explain the whereabouts of the promised paper. In each case, the deceived person's cheque was paid into a bank account of a company called Canyon Bay Pty Ltd, and shortly afterwards, Mr Parsons procured a withdrawal of the amount.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 195 ALR 502
Outcome: applied
The information obtained by the officer, on which he considered that there may be grounds for cancelling Ms Li's visa, was obtained from Ms Li in the absence of a proper translation of the communications between them. However, the officer had the benefit of an interpreter when he informed Ms Li that there may be grounds for cancelling her visa. He afforded her an opportunity, with the assistance of an appropriate interpreter, to inform him why her visa should not be cancelled. During that part of the interview, Ms Li told the officer that she intended to collect money from customers during her stay, for the clothes she had previously sold. In effect, Ms Li said that she intended to conduct some business by collecting money from customers and to also have a holiday. She thereby exhibited a mixed purpose. In the circumstances, no practical injustice arose (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 195 ALR 502 at [37] ). 19 Although the officer inappropriately obtained some information from Ms Li without proper interpreting facilities, he afforded her an opportunity to disabuse him from any prima facie views he had formed as a result of those discussions. The oral notice issued under s 119 of the Act was interpreted properly. The answers given to it were interpreted. In those answers, Ms Li stated that she came to Australia for a holiday and the purpose of collecting money from customers. No practical injustice arose as a consequence of the failure of the officer to afford adequate interpretation prior to the reading of the notification under s 119 of the Act. Ms Li stated, with the assistance of interpretation, that she came for a mixed purpose. On the basis of these statements, the officer was entitled to cancel her visa. 20 Ms Li sought to tender before the Federal Magistrate affidavit evidence about the conditions and conduct of the interview and about her lack of understanding of the officer's questions, absent an interpreter. Even if this evidence had have been admitted it would not have demonstrated any injustice which was not remedied by proper interpretation of the notification under s 119 of the Act and proper interpretation of the subsequent interview which commenced at 1.40 pm. Assuming, without deciding, that this evidence should have been admitted, its tender would not have affected the conclusion that, overall, there was no practical injustice visited upon Ms Li. In her affidavit, Ms Li seeks to contradict what her counsel agreed was an accurate interpretation of what she said in the interview when assisted by a Mandarin interpreter. This shows that little weight would have been given to the affidavit if it had been admitted.
Case: DKLR Holding Co (No 2) Pty Limited v The Commissioner of Stamp Duties (New South Wales) [1982] HCA 14 ; (1982) 149 CLR 431
Outcome: referred to
In drawing attention to the implications of beneficial ownership of property of the foregoing kinds, Lend Lease drew attention to the reasons for judgment of the High Court in DKLR Holding Co (No 2) Pty Limited v The Commissioner of Stamp Duties (New South Wales) [1982] HCA 14 ; (1982) 149 CLR 431, where there fell for consideration in the context of the Stamp Duties Act 1920 (NSW) the statutory notion of Declaration of Trust defined in the Second Schedule thereto, being '... any instrument declaring that any property vested or to be vested in the person executing the same is or shall be held in trust for the person or persons mentioned therein...'. That stamp duties legislation defined ' property ' as comprising both realty and personalty, and here of course the property involved, being the substantial shareholding of Lend Lease in Westpac, was in the nature of personalty. What was emphasised in the course of the majority judgments in DKLR was the precept that where property is beneficially held by an owner of the legal estate, there are no separate rights of ownership existing and divisible into legal and beneficial ownership. As explained by Gibbs CJ at 442-443, Aickin J at 463 and Brennan J at 473-474, a person cannot be a trustee for himself, and where for instance a person holds the legal estate beneficially, there are no separate legal and equitable estates thereby constituted or otherwise subsisting. What is constituted therefore in that circumstance is simply ownership in the sense of the entirety of an estate or interest.
Case: Sydney Futures Exchange Limited v Australian Stock Exchange Limited and Another (1995) 56 FCR 236
Outcome: cited
Moving then to the Commissioner's postulation of the controversial notion of 'additional non-cash consideration' appearing in the table reproduced in [16] above, as reflective the right of Lend Lease, as against County Natwest, to remain in possession of the Westpac shares, and to enjoy the notion of 'beneficial interest in the Sale Shares' prior to completion of the FPA scheduled for 30 April 2000 (that is of course nearly four years after the FPA was entered into on 7 June 1996), Lend Lease submitted that such postulation of beneficial interest served inherently 'to reveal the fundamental fallacy in [the Commissioner's] argument'. Any such 'right as against County Natwest' did not exist, so the Lend Lease contentions continued, at any time from 18 June 1996, when the FPA was entered into and the sum of $352,297,356 was paid by County Natwest to Lend Lease by way of 'Initial Instalment', to January 2000, when the 'Final Instalment' of $1 million became payable and was paid, and thereafter until the 'Completion Date' of 30 April 2000, and was characterised by Lend Lease as an embellishment of the Commissioner's case attended with the misconceived adjectives of valuable and contractual. Lend Lease asserted moreover that the Commissioner's further notion of Lend Lease 'remaining in possession' of the subject Westpac shares was 'fundamentally mistaken' according to principles of the general law. I was referred in that latter context to Sydney Futures Exchange Limited v Australian Stock Exchange Limited and Another (1995) 56 FCR 236 at 256, where Lockhart J spoke of shares as constituting 'choses in action, not choses in possession' , in the context that '[t] he buyer of shares does not obtain legal title to the shares until the buyer's name is entered in the share register, but in the meantime the buyer may acquire equitable interests in shares, enforceable by specific performance...'.
Case: Associated Alloys Pty Ltd v ACN 001 452 106 Pty Limited (in liquidation) and Another [2000] HCA 25 ; (2000) 202 CLR 588 
Outcome: referred to
Lend Lease therefore invoked the principle that since the FPA constituted a contract for the future sale of the Westpac shares, whereby until the effectuation of that sale, ownership would remain with Lend Lease and not pass to County Natwest, there was not acquired by Natwest any beneficial interest in the Westpac shares prior to completion of the FPA as scheduled to occur on the 'Completion Date' stipulated by the FPA for 30 April 2000, subject to the proviso of that contractual definition namely 'unless it is adjusted under clause 5.1 or 5.2' . I was referred by Lend Lease to Associated Alloys Pty Ltd v ACN 001 452 106 Pty Limited (in liquidation) [2000] HCA 25 ; (2000) 202 CLR 588 at [36] - [37] , where recognition was afforded by the majority judgment of the High Court (Gaudron, McHugh, Gummow and Hayne JJ) to the principle that effect should be given to any expression of intention of the parties to a contract for the sale of goods (being there fabricated steel) concerning the retention of ownership in favour of the seller until the goods were fully paid for by the buyer. Put therefore in summary as to the operation relevantly of the subject contractual documentation, Lend Lease asserted that beneficial ownership of the subject Westpac shares was not acquired by County Natwest until the time of completion of the FPA on 30 April 2000, or on any subsequently varied 'Completion Date' put in place, nor was there constituted a right of any other proprietary kind in relation to its disposal of its Westpac shares in favour of County Natwest until completion of the FPA. Upon the footing therefore of what I have summarised to date, Lend Lease submitted that there was no value in the nature of so-called putative property of any kind which could have been rightly included until 30 April 2000 (or any subsequently varied contractual date) for the purpose of determination of any capital gain or loss made or sustained by Lend Lease pursuant to Part IIIA of the Tax Act.
Case: Aberdeen Construction Group Ltd v Inland Revenue Commissioners [1978] AC 885 
Outcome: cited
Lend Lease submitted moreover that the construction of s 160ZD(1) of the Tax Act, by reference to the juridical basis upon which it framed its case, accorded also with 'business commonsense', and further that 'the consideration in respect of the disposal' of the Westpac shares, pursuant to the operation of subss 160ZD(1) and (2), constituted no more than the purchase price expressed to be payable by County Natwest as purchaser of those shares pursuant to the FPA. The Court was referred in that context generally to the following passage in the speech of Lord Wilberforce in Aberdeen Construction Group Ltd v Inland Revenue Commissioners [1978] AC 885 at 892-3: 'The capital gains tax is of comparatively recent origin. The legislation imposing it, mainly the Finance Act 1965, is necessarily complicated, and the detailed provisions, as they affect this or any other case, must of course be looked at with care. But a guiding principle must underlie any interpretation of the Act, namely that its purpose is to tax capital gains and to make allowance for capital losses, each of which ought to be arrived at upon normal business principles. No doubt anomalies may occur, but in straight-forward situations, such as this, the courts should hesitate before accepting results which are paradoxical and contrary to business sense. To paraphrase a famous clich&eacute;, the capital gains tax is a tax upon gains: It is not a tax upon arithmetical differences.' I would have difficulty nevertheless in describing the present situation as 'straight forward'. The essence of that aspect of his Lordship's speech in Aberdeen Construction , incidentally, was cited with approval in Commissioner of Taxation v Orica Ltd [1998] HCA 33 ; (1998) 194 CLR 500 at 545 [118] (Gummow J).
Case: Jazazievska v Secretary, Department of Family and Community Services (2002) 65 ALD 424
Outcome: referred to
It was pointed out by Lend Lease moreover that the notion of ' receive ' appearing in s 160ZD(1) should be accorded its ordinary meaning, for instance as contained in the Macquarie Dictionary (Revised Third Edition), that meaning being 'to take into one's hand or one's possession (something offered or delivered)' . A similar meaning was said to have been accorded in a social security context in Jazazievska v Secretary, Department of Family and Community Services (2002) 65 ALD 424 at 435 [39] (Cooper J), in the context of an attempted recovery of an overpayment of social security payments, where the statutory notion under scrutiny included the words 'received in good faith'. Lend Lease contended that '[f]or a taxpayer to have "received" money or property for the purposes of s 160ZD(1), [the taxpayer] must have acquired possession of that money from... someone else', and Lend Lease cited the following passage from the speech of Lord Lindley in Gresham Life Assurance Society Ltd v Bishop [1902] AC 287 at 296: 'But to constitute a receipt of anything there must be a person to receive and a person from whom he receives, and something received by the former from the latter, and in this case that something must be a sum of money.' In the present context, that 'someone else' from whom the asserted '[a]dditional non-cash consideration' was received would need to have been County Natwest or Westpac; in either case there is inherent difficulty which the Commissioner was required to address.
Case: Gresham Life Assurance Society Ltd v Bishop [1902] AC 287
Outcome: cited
It was pointed out by Lend Lease moreover that the notion of ' receive ' appearing in s 160ZD(1) should be accorded its ordinary meaning, for instance as contained in the Macquarie Dictionary (Revised Third Edition), that meaning being 'to take into one's hand or one's possession (something offered or delivered)' . A similar meaning was said to have been accorded in a social security context in Jazazievska v Secretary, Department of Family and Community Services (2002) 65 ALD 424 at 435 [39] (Cooper J), in the context of an attempted recovery of an overpayment of social security payments, where the statutory notion under scrutiny included the words 'received in good faith'. Lend Lease contended that '[f]or a taxpayer to have "received" money or property for the purposes of s 160ZD(1), [the taxpayer] must have acquired possession of that money from... someone else', and Lend Lease cited the following passage from the speech of Lord Lindley in Gresham Life Assurance Society Ltd v Bishop [1902] AC 287 at 296: 'But to constitute a receipt of anything there must be a person to receive and a person from whom he receives, and something received by the former from the latter, and in this case that something must be a sum of money.' In the present context, that 'someone else' from whom the asserted '[a]dditional non-cash consideration' was received would need to have been County Natwest or Westpac; in either case there is inherent difficulty which the Commissioner was required to address.
Case: Burrill v Commissioner of Taxation (1996) 67 FCR 519
Outcome: cited
In the foregoing context, Lend Lease cited dicta of a Full Federal Court in Burrill v Commissioner of Taxation (1996) 67 FCR 519 at 523 (Jenkinson, Olney and Sundberg JJ) that '[i] t is a fundamental principle of Australian income tax law that rights to receive money and obligations to pay money are taken into account in calculating income and outgoings, gains and losses, at their nominal value' . Reliance was placed by the Full Federal Court in Burrill incidentally upon the following dicta of the High Court in Federal Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1987) 163 CLR 199 at 216-217 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ): 'The accounting basis which has been employed in calculating profits and losses for the purposes of the Act is historical cost... not economic equivalence... And so a taxpayer who lends money for a stipulated period at interest is treated as exchanging the money lent for a debt of the same amount, unless the loan is made at a discount or premium, in which case there may be a gain or loss on capital account... . In the ordinary case, the debt is brought to account in the same amount as the money lent. The amount of the debt is not reduced because the lender is kept out of the use and enjoyment of the money lent for the period of the loan.' It was contended by the Commissioner that the foregoing dicta 'does not address the statutory requirements in s 160ZD(1)(c)'. The difficulty for the Commissioner remains however in seeking to establish that the par (c) expression 'an amount or amounts of money or property' accommodated the controversial notion of '[a] dditional non-cash consideration on disposal' appearing in [16] above. 52 The further response of Lend Lease to what was propounded by the Commissioner concerning the value of the 'right to share in Westpac dividends' was that the Commissioner thereby unjustifiably and impermissibly elevated 'a supposed economic equivalence to the status of a contractual right capable of comprising consideration'. Lend Lease cited in that regard Commissioner of Taxation v Citylink Melbourne Ltd [2006] HCA 35 ; (2006) 228 ALR 301, where at [95], Crennan J (with whose reasons Gleeson CJ and Gummow J agreed), observed as follows: '... it was contended that the net present value of the liability to pay the concession fees should be used to calculate allowable deductions. The Commissioner applied for leave to amend the grounds of appeal to raise this point... Leave to amend was refused. Present value discounting of outgoings, payable in the future, is currently under consideration, together with other methods for assessment and deduction, spread over the life of certain financial arrangements (her Honour thereby referring to the Tax Laws Amendment (Taxation of Financial Arrangements) Bill 2006, exposure draft, December 2005) . However, the accounting basis used to date in Australian tax law for the purposes of assessment and deductions has been historical cost accounting, rather than economic equivalents.' Citation was made by her Honour from both Burrill and Myer Emporium.