Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue
[2012] VSC 518
•31 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
TAXATION LIST
No. 589 of 2012
| ASTON (AUST) PROPERTIES PTY LTD (ACN 105 035 907) & ORS (according to the attached Schedule) | Plaintiffs |
| v | |
| COMMISSIONER OF STATE REVENUE | Defendant |
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JUDGE: | DAVIES J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2012 | |
DATE OF JUDGMENT: | 31 October 2012 | |
CASE MAY BE CITED AS: | Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 518 | |
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PRACTICE AND PROCEDURE – Application for leave to appeal from orders of the Victorian Civil and Administrative Tribunal (“VCAT”) – Whether questions of law identified – Leave to appeal given on a limited basis – Victorian Civil and Administrative Tribunal Act 1998 (Cth), s 148 – Land Tax Act 1958 (Vic), s 44 – Land Tax Act 2005 (Vic), s 47 – Property Law Act 1958 (Vic), s 53
TAXES AND DUTIES – Whether it is open to a taxpayer in review proceedings to challenge whether a determination under s 44(3) of the Land Tax Act 1958 (Vic) was made – Whether the making of the determination goes to substantive liability or is procedural only
PRACTICE AND PROCEDURE – Single application for leave to appeal a decision of the Tribunal affirming multiple objection decisions of the Commissioner involving multiple taxpayers – Tribunal proceedings heard together – Whether single application for leave competent – Application for joinder - Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic), O7 – Acts Interpretation Act 1901 (Cth), s 23 – Interpretation of Legislation Act 1984 (Vic), s 37(c) – Taxation Administration Act 1997 (Vic) – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 9.02(b)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | HM Symon SC with MY Bearman | Redford & Associates |
| For the Defendant | JD Merralls QC with CJ Horan | Solicitor for the Commissioner of State Revenue |
HER HONOUR:
Introduction
The plaintiffs (“the taxpayers”) seek leave to appeal from orders of the Victorian Civil and Administrative Tribunal (“the Tribunal”). The orders affirmed decisions of the Commissioner of State Revenue (“the Commissioner”) to disallow the taxpayers’ objections to assessments for land tax and duty. If leave is granted the application is to be treated as the appeal.
The assessments for land tax were made by the Commissioner on the basis that the grouping provisions in s 44 of the Land Tax Act 1958 (Vic) (“the 1958 Act”) and s 47 of the Land Tax Act 2005 (Vic) (“the 2005 Act”) applied. The Commissioner jointly assessed the taxpayers with other corporations that were “related” within the meaning of s 44 of the 1958 Act and s 47 of the 2005 Act (collectively “the grouped corporations”). The companies individually exercised their objection rights and, upon disallowance, their rights to have the Commissioner’s objection decisions reviewed by the Tribunal. Only the taxpayers pursued their applications before the Tribunal because the other corporations (“the deregistered companies”) were deregistered before hearing and their applications for review were struck out.
As the taxpayers’ right of appeal is under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“the VCAT Act”), the taxpayers can only appeal to this Court on a question of law.[1] A draft Notice of Appeal has been filed which has posed numerous (repetitive) questions for determination. The Commissioner contended that the proposed Notice of Appeal has not raised questions of law. It was contended that the questions, despite their form as questions of law, actually raise questions of fact or questions of mixed fact and law which do not enliven this Court’s jurisdiction. [2]
[1]Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148.
[2]Osland v Secretary to the Department of Justice [2010] HCA 24; TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1998) 82 ALR 175; Federal Commissioner of Taxation v Brixius (1978) 87 ATC 4963, and Commissioner of State Revenue v STIC [2010] VSC 608.
For the most part I found that the questions, as framed, did not meaningfully reveal whether questions of law do arise. Merely using the language of judicial review does not turn a question of fact or a question of mixed fact and law into a pure question of law.[3] Many of the questions actually invite inquiry into the facts and a rehearing of the evidential matrix, indicating that what has been posed as a question of law in fact is not. That is not to say that the proposed subject matter of the appeal, on proper analysis, does not raise a question or questions of pure law which enlivens this Court’s jurisdiction. In the present case, this is best determined by considering the legal propositions contended for by the taxpayers, not by reference to the questions themselves.
[3]Ibid.
Proposition 1: The Tribunal misapprehended the inquiry before it
The taxpayers contended that the Tribunal erred in law in affirming the Commissioner’s decisions to disallow their objections against the land tax assessments because the Tribunal misapprehended what was involved in determining whether those assessments were excessive and thereby failed to take into account relevant considerations. The contention was founded in the Tribunal’s reasons that:
Only trusts of which one of the [taxpayers] is trustee are relevant to these proceedings.[4]
[4]Reasons for decision at [15].
A central issue for the Tribunal was whether the lands on which the land tax was assessed was trust property. The taxpayers argued that the land tax assessments were excessive because some or all of the lands which were the subject of the joint assessments were trust property and, as trust property, were liable to be separately assessed for land tax at certain rates specified in the schedules to the 1958 and 2005 Acts. The Tribunal held that the taxpayers did not prove the existence of the trusts of which they claimed to be trustees, other than the existence of the Srichuang Family Trust for which a deed of settlement was produced.[5] The Tribunal said that the existence of those trusts of which the deregistered companies were said to be trustees was “not now in issue” because the existence of those trusts were the subject of the applications that were struck out.[6] The taxpayers say that it was necessary for the Tribunal to consider whether the land owned by the deregistered companies was subject to trusts as that factual inquiry went to the excessive of the assessments for which they were made jointly. Hence the taxpayers contended that the Tribunal had misapprehended the inquiry before it in finding that only trusts of which the taxpayers were trustees were relevant to the review proceedings. The relevant considerations said not to have been taken into account by the Tribunal were the status of the deregistered companies and the evidence as to the existence of trusts of which they were trustees.
[5]Reasons for decision at [5] and [38].
[6]Reasons for decision at [15].
It does not follow that there is a question of law on which the taxpayers should be given leave to appeal pursuant to s 148(1) of the VCAT Act just because the Tribunal confined its consideration to whether the taxpayers had discharged their burden of proving the existence of the trusts of which they claimed to be trustees. It is also necessary to show that the error of law materially affected the decision that was made. Otherwise there is no utility in granting leave to appeal because it cannot be shown that the decision may have been different if the error had not been made.[7] In fact, nothing flowed from the Tribunal’s view that only those trusts of which the taxpayers were trustees were relevant to the proceedings before it.
[7]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ), 384 (Toohey and Gaudron JJ)
On the evidence, the trusts that the Tribunal had said were “now not in issue” were established “in-house” by a Mr Corcoris in the same way as those trusts of which the taxpayers claimed to be trustees.[8] The Tribunal found that the evidence was not sufficient to show the existence of any of the trusts that Mr Corcoris claimed to have set up. In so finding, the Tribunal rejected Mr Corcoris’s evidence that he followed the trust-creation process that he outlined in his affidavit. The Tribunal considered it “probable that the trusts” that he created were nothing more than trust schedules, sometimes combined with trustee execution pages, which were designed to satisfy his bankers and the regulatory requirements of Commonwealth authorities and the Commissioner.[9] The Tribunal formed the view that Mr Corcoris “was combative, evasive and… tailored his evidence to the exigencies of the moment” and that his credibility had been undermined in a number of ways.[10] It is perfectly clear from the Tribunal’s reasons that the Tribunal had regard to all the evidence that was probative of the existence of the trusts in question, including those trusts said to be the trusts of which the deregistered companies were trustees.
[8]The Srichuang Family Trust was not created “in-house” by Mr Corcoris. It had been established at a earlier point in time.
[9]Reasons for decision at [37].
[10]Reasons for decision at [36].
The rejection of Mr Corcoris’s evidence meant that the taxpayers did not discharge the onus on them to prove the existence of any of the trusts that Mr Corcoris claimed to have established. It also meant that there was no evidence to support a finding about the existence of trusts of which the deregistered companies were said to be trustees. The existence of those trusts only became relevant to the matters that the Tribunal had to decide, if the Tribunal had accepted Mr Corcoris’s evidence that they were established. The Tribunal did not and the decision to affirm the assessments did not turn on the Tribunal’s view that those trusts were irrelevant. It follows that the Tribunal’s misapprehension about the scope of the inquiry before it, as contended, did not lead the Tribunal into legal error in reaching its decision.
In order to obtain leave to appeal under s 148(1) of the VCAT Act, the taxpayers must show that the Tribunal’s view that only those trusts of which the taxpayers were trustees were relevant to the proceeding led the Tribunal into legal error in reaching its decision.[11] As that has not been shown, leave to appeal on the questions directed at the Tribunal’s failure to consider the existence of the other trusts is refused.
Proposition 2: The Tribunal took into account irrelevant considerations in disregarding Mr Corcoris’s evidence about the existence of the trusts
[11]Secretary to theDepartment of Premier and Cabinet vHulls [1999] 3 VR 331; Commissioner of State Revenue v Liquid Rock Constructions Pty Ltd [2012] VSC 329; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232.
The taxpayers challenged the Tribunal’s rejection of Mr Corcoris’s evidence about the existence of the trusts. This challenge was founded on paragraph 38 of the Tribunal’s reasons in which the finding was made that the taxpayers had not discharged their burden of proving that the trusts existed. The Tribunal member stated:
With the exception of the Srichuang Family Trust, I find that the applicants have not discharged the burden of showing me that the asserted trusts existed. Evidence to the contrary from Mr Corcoris should be disregarded. This is because of the way in which he admitted and was shown to have conducted his investment business, his impatience with trust-law formalities and reckless indifference to the correctness of trust records.
It was contended that the three reasons given by the Tribunal for disregarding Mr Corcoris’s evidence “were not relevant in any way whatsoever as to whether Mr Corcoris should be believed in his evidence about the existence of the trusts.”[12] The contention was that the Tribunal fell into legal error in disregarding Mr Corcoris’s evidence because it took irrelevant considerations into account.
[12]Taxpayers’ written submissions (3 September 2012), at [65].
In substance, the taxpayers’ arguments simply amounted to a factual challenge to the Tribunal’s reasons for not accepting Mr Corcoris’s evidence. Whether Mr Corcoris should be believed was a factual inquiry. It could not be said, nor was it said, that it was not open to the Tribunal on the evidence to make an adverse credit finding against Mr Corcoris. Nor were the factors compendiously set out in paragraph 38 of the Tribunal’s reasons lacking any probative value. It was for the Tribunal to decide the weight to be attached to those matters and, having rejected Mr Corcoris’s evidence, to decide whether there was a sufficient evidentiary basis for the Tribunal to find that any of the trusts existed.
The proposed questions directed at challenging the Tribunal’s rejection of Mr Corcoris’s evidence are not competent to found an appeal under s 148(1) of the VCAT Act. Leave to appeal on those questions is therefore refused.
Proposition 3: The Tribunal misconstrued the operation and effect of s 53 of the Property Law Act 1958 (Vic)
It was then contended that the Tribunal wrongly disregarded evidence that was corroborative of the existence of the trusts because the Tribunal: (1) wrongly found that s 53 of the of the Property Law Act 1958 (Vic) (“the PLA”) required the taxpayers to prove that there were trust deeds for the trusts that were claimed to exist; and
(2) wrongly held that it was “not competent” for Mr Corcoris to give the evidence that the terms of a trust deed were incorporated into the trusts that he had created. This contention does not raise any appellable question of law because the contention does not actually engage what the Tribunal decided.
Mr Corcoris’s evidence was that he created the trusts by copying and replicating the standard terms and conditions of a standard trust deed and compiling a new schedule for attachment to the standard terms. However, Mr Corcoris was not able to produce any trust deeds for the trusts that he created “in-house”. Contrary to the taxpayers’ contention, the Tribunal did not find that s 53 of the PLA required the taxpayers to prove that there were trust deeds. The actual finding of the Tribunal was that “in the absence of trust deeds, an essential element of each of the … trusts is not proven”.[13] The Tribunal so held because none of the schedules made reference to the standard trust deed and therefore “incorporation [of the terms of that standard deed] by reference [was] excluded…”[14] Earlier, the Tribunal had found as follows:
No reason was supplied for the fact that amongst the documents that the AFP/ATO returned there were no trust deeds. Evidently Mr Corcoris believed that the terms of trusts could be incorporated by implication from the terms of a “standard” document acquired prior to 1994 from Express Company Services. However, individual “trust” schedules made no reference to this standard document. Nor was any evidence provided of any usage or course of dealings between Mr Corcoris and any of the applicants concerning implication of the standard form deed.
Trust schedules, execution pages and associated minutes exhibited contained a very large number of errors and inconsistencies, as Mr Corcoris admitted in cross-examination. Transactions were purportedly entered by corporations not then in existence. Corporate seals were very often affixed without attestation. Minutes of meetings were usually unsigned. Summary schedules of trusts and spreadsheets recording trust affairs were also affected by many errors and inconsistencies, as Mr Corcoris admitted.[15]
[13]Reasons for decision at [31].
[14]Reasons for decision at [32].
[15]Reasons for decision at [18]-[19].
The Tribunal went on to consider whether the terms were incorporated by implication. The Tribunal held that “incorporation by implication [was] excluded by inadequacies of the [taxpayers’] proof”.[16] The Tribunal further rejected incorporation by implication based on common usage or course of dealings because no evidence of common usage or course of dealings was led by the taxpayers and:
In the sequence of trust creation procedures, Mr Corcoris gave evidence that the applicant trustee corporations were often acquired directly before creation of unit trusts. This denies incorporation by implication. There was no time for any common usage of course of dealings to arise for incorporation of the deed.[17]
[16]Reasons for decision at [32].
[17]Reasons for decision at [34].
Case law supports the Tribunal’s conclusion that Mr Corcosis’s evidence about the incorporation of the standard terms did not satisfy the requirements of s 53 of the PLA to establish that there were existing trusts. The creation of the trusts had to be evidenced in writing and the writing had to set out the beneficiaries, the trust property and the nature and terms of the trust.[18] Absent such written evidence, Mr Corcosis’s evidence about the incorporation of the standard terms did not overcome deficiencies in the proof required by s 53 of the PLA.
[18]Equuscorp Pty Ltd v Jimenez [2002] SASC 225; Sheahan v Frost [2011] FCA 356.
In my view, the taxpayers’ contention of legal error based on s 53 of the PLA has no grounding in the actual decision and, in any event, has no merit. Leave to appeal on this ground is refused.
Proposition 4: The assessments made under the 1958 Act were invalid
Another central issue for the Tribunal concerned the assessments raised under the 1958 Act. Section 44(3) of the 1958 Act provided as follows:
44. Related corporations
(3)If 2 or more corporations are related within the meaning of this section, those corporations may, if the Commissioner so determines, be taken to be a single corporation for the purposes of this Act.
In issue was whether the Commissioner had failed to make the relevant determinations under s 44(3) and, if so, whether the assessments were therefore invalid. The Tribunal found that the Commissioner had failed to make s 44(3) determinations[19] but that the failure could not be challenged in the proceedings before it as a s 44(3) determination was “germane to tax assessment and not tax liability.”[20] The taxpayers challenged that conclusion. They contended that the decision of the Tribunal to affirm the Commissioner’s objection decisions was affected by legal error because the making of a determination under s 44(3) is a criterion of tax liability. It was argued that the Tribunal should have held that the assessments were invalid on the basis of its finding that the Commissioner had failed to make s 44(3) determinations.
[19]Reasons for decision at [43] and [55].
[20]Reasons for decision at [50]. See also [49] and [53].
A question of law is raised upon which leave to appeal should be granted. The question of law is whether the making of a determination under s 44(3) is a criterion of tax liability. In my view, the making of a determination under s 44(3) is a criterion of tax liability and the appeal on this question of law should be allowed.
In my view, the Tribunal was wrong to hold that a s 44(3) determination is not an element of substantive liability and wrong to hold that it was not open to the taxpayers in the review proceedings to contest whether s 44(3) determinations were made. The making of the determination was an essential step for assessment of the related companies jointly. Joint liability depended on the Commissioner determining that the related companies should “be taken to be a single corporation for the purposes of” the 1958 Act.[21] To put it another way, the Commissioner’s power to assess related corporations jointly was conditioned upon the Commissioner making a determination under s 44(3) that the companies were to be taken to be a single corporation. As no consequence flowed from the fact that companies were related unless the Commissioner determined to treat the companies as a single corporation,[22] the making of a determination cannot be regarded as a mere procedural or mechanical step in the process of assessment.[23]
[21]Land Tax Act 1958 (Vic), s 44(3).
[22]Deputy Commissioner of Taxation v Richard Walter (1995) 183 CLR 168, 182-4 per Mason CJ; Stokes v Commissioner of Taxation (Cth) (1996) 136 ALR 632; Commissioner of Taxation (Cth) v Stokes (1996) 72 FCR 160; Puzey v Commissioner of Taxation (2003) 131 FCR 244 (appeal decision); McAndrew v Federal Commissioner of Taxation (1956) 98 CLR 263.
[23]Cf George v Federal Commissioner of Taxation (1952) 86 CLR 83.
The Commissioner filed a notice of contention that the Tribunal wrongly held that the Commissioner had failed to make s 44(3) determinations. That finding appears in paragraph 55. The Tribunal appeared to base its finding on what was said to be the Commissioner’s “admission” that no specific determinations were made prior to the issue of assessments.[24] The Commissioner claims that the admission attributed to him was not made and that he has been denied natural justice.
[24]Reasons for decision at [43].
The Commissioner did not make formal written determinations. But before the Tribunal, the Commissioner had contended that there was no requirement for formal written determinations. The Commissioner had contended that determinations were made and that the making of the determinations was evidenced by letters sent to the taxpayers prior to assessment, by the joint assessments that issued to them, and by the Commissioner’s reasons for disallowing the taxpayers’ objections.[25]
[25]Transcript of the Hearing before the Victorian Civil and Administrative Tribunal (27 October 2011), T375-388.
There is no reference at all in the reasons for decision to those contentions. No path of reasoning appeared from the Tribunal member’s reasons for finding that the Commissioner failed to make s 44(3) determinations, other than reference to the Commissioner’s “admission”. The Tribunal either must have rejected those arguments but without providing any reasons why, or else completely failed to deal with the arguments. Either way, there is appellable legal error.[26] The Tribunal had to address the legal requirements for a s 44(3) determination and had to address whether those legal requirements were met. As the determination of those matters involves both legal and factual questions, it is necessary to remit the question of whether s 44(3) determinations were made to the Tribunal for further hearing.
Proposition 5: The Tribunal wrongly failed to consider the consequences of the three trusts that were established on the evidence
[26]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, 15 per McHugh, Gummow and Hayne JJ. See also, Dornan v Riordan (1990) 24 FCR 564; Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65. See also, Dennis WillcoxPty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCA 763; Sent v Commissioner of Taxation [2012] FCA 381.
In addition to the Srichuang Family Trust, the taxpayers were also able to produce the trust deeds of the Vrondis Family Trust and the Charzone Unit Trust.[27] It was common ground that the Tribunal should also have found that these two trusts existed.
[27]None of these trusts were trusts that Mr Corcoris claimed to have established “in-house”.
It was also common ground that the Tribunal wrongly failed to consider the application of the trust provisions to the Srichuang Family Trust and, in view of the finding that should have been made about the other trusts, to the Vrondis Family Trust and the Charzone Unit Trust as well. The parties were in agreement that the proceeding should be remitted to the Tribunal for decision on these matters and I would so order.
Competency of the application
The issue here is whether it was competent for the taxpayers to make a single application for leave under s 148(1) of the VCAT Act.
There were twenty separate review proceedings before the Tribunal relating to twenty separate objection decisions against twenty separate assessments. The review proceedings were heard together but they were not consolidated. The Tribunal handed down one judgment in all twenty matters and made one order affirming “the decision of the [Commissioner]”. The taxpayers then lodged the one application for leave.
It was submitted for the taxpayers that they could join in lodging the one application for leave to appeal because the Tribunal made a single order and there was only one order capable of an application for leave. I do not accept that submission. The order was made in each proceeding, though pronounced as one order in the judgment delivered and each taxpayer has a separate right of appeal under s 148(1) of the Act (subject to leave) against the order made in the particular taxpayer’s proceeding.
This does not answer the question of whether one application for leave is capable of being made. Different considerations apply. In my view, the joint application is not precluded by s 148(1) of the VCAT or by Order 7 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) which contains the rules of the Court governing applications for leave to appeal from a taxation decision. I decline to follow Re Legge Holdings Pty Ltd v Commissioner of Taxation[28] on which the Commissioner relies and prefer the reasoning of Ryan J in Krampel Newman Partners Pty Ltd v Commissioner of Taxation.[29]
[28][1990] FCA 81.
[29](2001) 113 FCR 306.
In Krampel Newman Partners Pty Ltd v Commissioner of Taxation, Ryan J dismissed a motion by the Commissioner seeking the dismissal of an appeal jointly lodged by nine taxpayers against separate objection decisions made by the Commissioner disallowing each taxpayer’s objection to an assessment that was issued to that taxpayer. Ryan J held that more than one taxpayer could be an applicant in a single “appeal” from several objection decisions by force of s 23 of the Acts Interpretation Act 1901 (Cth). Perforce of s 23 of that Act, the singular expressions in the relevant statutory provisions and rules of the Court governing the right of appeal included the plural. Applying the same reasoning, words in the singular in Order 7 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) and s 148(1) of VCAT Act are to be taken as including the plural by force of s 37(c) of the Interpretation of Legislation Act 1984 (Vic), unless the contrary intention appears. No contrary intention can be inferred from the statutory scheme governing rights of objection and review contained in the Taxation Administration Act 1997 (Vic), nor from Order 7 of the Supreme Court (Miscellaneous Civil Proceedings) Rules. Accordingly, the one application is can be made. Re Legge Holdings Pty Ltd v Commissioner of Taxation can be distinguished and does not require any different conclusion to be reached because no consideration was given by the Court in that case to the statutory force of s 23 of the Acts Interpretation Act 1901 (Cth).
Here each taxpayer has exercised their right to make an application for leave by the joint application that was filed. The joint application for leave was made within time, and the application is competent.[30]
[30]Krampel Newman Partners Pty Ltd v Commissioner of Taxation (2001) 113 FCR 306
There is a further consideration. The taxpayers filed the joint application without first obtaining an order for joinder. The taxpayers should not have joined in making the one application unless an order under r 9.02(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) granting leave for the joinder would be made. It is appropriate for the Court to consider whether taxpayers properly joined in making the one application.[31] Each taxpayer has given an undertaking to the Court to file a separate application if the Court determines that separate applications were needed.
[31]Payne v Young (1980) 145 CLR 609; McDermott Industries (Aust) Pty Ltd v Federal Commissioner of Taxation [2003] FCA 139.
In my view this is an appropriate occasion to allow the joint application for leave and not to require separate applications to be filed. True it is that not all the taxpayers have an interest in each of the assessments against them and not all of the questions put forward as questions of law pertain to each of them. But, for the most part, the questions put forward as questions of law on which leave to appeal was sought raised common questions based on evidence common to all the taxpayers. Moreover, the joinder has not given rise to any unfairness to any party in the adoption of that course and the taxpayers had the same legal representation. In the circumstances, it seems to me that the joint application was an efficient and just means of proceeding. An order under r 9.02(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) granting leave for the joinder should be made nunc pro tunc.[32] Of course, that is not to say that in all cases a joint application will be justifiable. In each case, it will depend on the particular matter.
[32]Cerche v Commissioner of Taxation [2001] FCA 146; Russell v FCT [2008] FCA 343.
Orders
The parties are directed to provide a form of orders giving effect to these reasons within seven days. I will hear the parties on the question of costs.
SCHEDULE OF PARTIES
No. 589 of 2012
BETWEEN:
| ASTON (AUST) PROPERTIES PTY LTD (ACN 105 035 907) | First Plaintiff |
| and | |
| CM 2001 PTY LTD (ACN 096 773 670) | Second Plaintiff |
| and | |
| EVERJEST PTY LTD (ACN 102 723 795) | Third Plaintiff |
| and | |
| F & N PROPERTIES PTY LTD (ACN 103 334 701) | Fourth Plaintiff |
| and | |
| HIERAPOLIS PTY LTD (ACN 098 580 360) | Fifth Plaintiff |
| and | |
| PERSUES PTY LTD (ACN 098 722 644) | Sixth Plaintiff |
| and | |
| REDSTRIPE HOLDINGS PTY LTD (ACN 102 709 268) | Seventh Plaintiff |
| and | |
| SRICHUANG PTY LTD (ACN 065 263 765) | Eighth Plaintiff |
| and | |
| SRICHUANG INVESTMENTS PTY LTD (ACN 065 263 836) | Ninth Plaintiff |
| and | |
| THEREUS PTY LTD (ACN 098 720 140) | Tenth Plaintiff |
| and | |
| THEXTONS PTY LTD (ACN 099 459 962) | Eleventh Plaintiff |
| and | |
| COMMISSIONER OF STATE REVENUE | Defendant |
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