Clough Limited v Commissioner of Taxation (No 2)

Clough Limited appealed an objection decision by the Commissioner of Taxation, which was ultimately dismissed by the court. The matter before the court was whether the costs incurred by the parties should be awarded in a specific manner given the circumstances of the case. Specifically, the court had to determine the appropriate costs order to make considering that the Commissioner of Taxation made an unconditional concession regarding costs just days before the hearing of the appeal.

The court considered the relevant legislation and case law in making its decision. It noted that while the general rule is that the losing party pays the costs of the winning party, the court has discretion to make other orders if it considers it just to do so. The court found that the circumstances of the case warranted an order that departed from the general rule. The Commissioner's concession was made unilaterally and without consultation with Clough Limited. The court also noted that Clough Limited had not unreasonably delayed in pursuing the appeal, and that it had been acting in good faith.

Accordingly, the court made an order that Clough Limited pay 70% of the Commissioner's costs up until the date of the concession, and 100% of the costs after that date. The court also made orders for the assessment of costs, should the parties be unable to agree on them, and for liberty to apply for an order that the costs be assessed on a lump sum basis. The court found that these orders were just and appropriate given the circumstances of the case.