Century Yuasa Batteries Pty Ltd v Commissioner of Taxation
[1997] FCA 1621
•23 May 1997
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No QG 126 of 1993
BETWEEN:
CENTURY YUASA BATTERIES PTY LTD
Applicant
AND:
COMMISSIONER OF TAXATION
Respondent
JUDGE MAKING ORDER: Cooper J
WHERE MADE: Brisbane
DATE OF ORDER: 23 May 1997
MINUTES OF ORDER
UPON the undertaking of the respondent, by his counsel, to forthwith pay to the applicant, by its solicitors, the amount of withholding tax which, in terms of the reasons for judgment, was overpaid by the applicant to the respondent together with interest in accordance with the Taxation (Interest on Overpayments and Early Payments) Act 1983 AND UPON the undertaking of the applicant, by its counsel, to forthwith repay to the respondent, by his solicitor, any amount which, in terms of any decision on appeal, was payable by the applicant to the respondent together with any additional tax for late payment thereof.
THE COURT ORDERS THAT:
The applicant have leave to withdraw its abandonment of so much of the application which sought a review of the respondent’s decision in relation to the remission of additional tax, being the decisions referred to in grounds (f) and (g) of the application filed 27 July 1993.
That part of the decision of the respondent in relation to the remission of penalty tax in respect of interest withholding tax claimed by the respondent on monies paid by the applicant which monies, in accordance with the reasons for judgment of the court, did not represent interest calculated and paid under clause 5 of the Facility Agreement, be set aside.
The question of penalty tax in respect of interest withholding tax claimed by the respondent on monies paid by the applicant which monies, in accordance with the reasons for judgment of the court, did not represent interest calculated and paid under clause 5 of the Facility Agreement, be remitted to the respondent to be reconsidered in accordance with the reasons for judgment of this court.
Each party pay its own costs, including reserved costs, of this proceeding.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No QG 126 of 1993
BETWEEN:
CENTURY YUASA BATTERIES PTY LTD
Applicant
AND:
COMMISSIONER OF TAXATION
Respondent
CORAM: Cooper J
PLACE: Brisbane
DATE: 23 May 1997
FURTHER REASONS FOR JUDGMENT
The parties have agreed to the orders set out below to overcome the consequence of the abandonment of so much of the application which sought a review of the respondent’s decision in relation to the remission of additional tax. In the final outcome the applicant has obtained limited relief notwithstanding that it failed on the majority of the issues which were raised and argued. The parties have not been able to agree on the question of costs.
In written submissions counsel for the applicant submitted that, having succeeded on one issue, the applicant should recover a proportion of its costs. A figure of 50% was advanced. Alternatively, it was submitted that each party bear its own costs. The respondent seeks an order that the applicant pay the respondent’s costs.
The difficulty with the applicant’s primary submission is that, absent the leave to withdraw the abandonment of the review of the decision as to remission of additional tax, the application for review would have been dismissed. In that event costs would ordinarily follow the event and an order would have been made in the respondent’s favour. The applicant can only advance the claim for costs on the basis of a partial success because the respondent has agreed to allow the abandoned application for review to be re-agitated.
In written submissions counsel for the respondent argued that absent the concession by the respondent it would in the ordinary course have recovered its costs because the application would have been wholly dismissed. The difficulty with this submission is that absent the abandonment at trial the applicant would have obtained orders in terms of the draft orders agreed by the parties. It would then have been an argument as to whether costs should follow the event in favour of the applicant or whether the question of costs should be determined issue by issue.
In my view each of the parties has had substantial success. Further, the parties by their agreement were desirous that the issues be litigated and resolved. The hearing was not substantially prolonged by dealing with the issues upon which the applicant failed: it would have been necessary to traverse the statutory scheme for the recovery of withholding tax if the argument had been limited to the issue upon which the applicant succeeded. The justice of the situation is best served if each party bears its own costs of and incidental to the application including reserved costs.
I certify that this and the preceding page is a true copy of the reasons for judgment herein of his Honour Justice Cooper.
Date: 23 May 1997
Associate
Counsel for the Applicant: F L Harrison QC
Solicitors for the Applicant: Kinneally Mahoney
Counsel for the Respondent: P E Hack
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 8 May 1997
Place of Hearing: Brisbane
Date of Judgment: 23 May 1997
4
0
0