Chief Commissioner of State Revenue v Boss Constructions (NSW) Pty Ltd

[2018] NSWCA 51

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Chief Commissioner of State Revenue v Boss Constructions (NSW) Pty Ltd [2018] NSWCA 51
Hearing dates:	14 March 2018
Decision date:	14 March 2018
Before:	Basten JA, Simpson JA
Decision:	(1)   Subject to the Chief Commissioner accepting liability to bear the costs of the respondent in this Court in any event, grant leave to the applicant to appeal from the judgment of Brereton J given on 11 October 2017. (2)   Direct that the Chief Commissioner advise the registrar within 7 days as to whether or not that condition is accepted. (3)   In the event that the condition is accepted, direct the applicant file a notice of appeal in the form contained in the white folder within 14 days. (4)   The Costs of the application and the appeal to be borne by the Chief Commissioner in any event.
Catchwords:	CIVIL PROCEDURE – leave to appeal – application to set aside statutory demand – whether out of time – whether proposed grounds better than merely arguable – matter of public importance – whether applicant should pay costs in any event
Legislation Cited:	Corporations Act 2001 (Cth), s 459G
Cases Cited:	David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43
Category:	Procedural and other rulings
Parties:	Chief Commissioner of State Revenue (Applicant) Boss Constructions (NSW) Pty Ltd (Respondent)
Representation:	Counsel: Mr F Assaf and Mr P J Strickland (Applicant) Mr N Bobos (Director, for Respondent)   Solicitors: Stacks Champion (Applicant) Mr N Bobos (Director, for Respondent)
File Number(s):	2017/331468
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Division Citation: [2017] NSWSC 1334 Date of Decision: 11 October 2017 Before: Brereton J File Number(s): 2017/221013

Judgment

1. THE COURT: In this matter leave to appeal is sought by the Chief Commissioner in respect of a judgment of Brereton J in relation to a statutory demand, the judgment being given on 11 October 2017. [1] The judgment held that, although the statutory demand had been served on a date rendering the application to set it aside out of time, the Chief Commissioner was estopped from denying that it had been served two days later.

   1. In the matter of Boss Engineering (NSW) Pty Limited [2017] NSWSC 1334.

2. Whether an estoppel can run against the jurisdictional requirement identified in s 459G and related provisions of the Corporations Act 2001 (Cth), in light of considerations discussed in David Grant & Co Pty Ltd v Westpac Banking Corporation,[2] involves a matter of legal principle. It is also a matter of some general importance in the administration of this aspect of the Corporations Act. The legal error relied upon by the Chief Commissioner is more than merely arguable. On that basis, there would be grounds for granting leave to appeal. The second ground sought to be relied on, relating to procedural unfairness, also has reasonable prospects of success.

   2. (1995) 184 CLR 265; [1995] HCA 43.

3. The injustice which the Chief Commissioner says is suffered in these circumstances is the requirement that if the judgment below stands, he will face a full‑blown hearing. That may be so, but it would be applicable to both parties and Mr Bobos, who appears for the company, states that that hearing will take place, in any event. That too is so, but only if the company loses the appeal will the prejudice flowing from the grant of leave materialise, and the parties will both face a full hearing.

4. In these circumstances, the Court is minded to grant leave conditionally. The Chief Commissioner seeks to litigate a point of principle which is important for the administration of the tax laws and should bear the costs in any event. As counsel was not instructed to consent to that condition of a grant of leave proposed by the Court, the Court makes the following orders:

1. Subject to the Chief Commissioner accepting liability to bear the costs of the respondent in this Court in any event, grant leave to the applicant to appeal from the judgment of Brereton J given on 11 October 2017.

2. Direct that the Chief Commissioner advise the registrar within 7 days as to whether or not that condition is accepted.

3. In the event that the condition is accepted, direct the applicant file a notice of appeal in the form contained in the white folder within 14 days.

4. The Costs of the application and the appeal to be borne by the Chief Commissioner in any event.

**********

Endnotes