Deputy Commissioner of Taxation v Lister - [2002] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

Deputy Commissioner of Taxation v Lister & Anor [2002] QCA 270

PARTIES:

DEPUTY COMMISSIONER OF TAXATION
(plaintiff / respondent)

v

LEONARD WARBURTON LISTER
KATHLEEN PATRICIA LISTER
(defendants / appellants)

FILE NO/S:

Appeal No 196 of 2002
DC No 156 of 2000
DC No 157 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

30 July 2002

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2002

JUDGES:

Davies, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDERS:

Dismiss the appeal by Leonard Warburton Lister against the judgment in D156/00 with costs;1.

With respect to the appeal by Kathleen Patricia Lister against the judgment in D157/00: 2.

allow the appeal and set aside the judgmentin favour of the Deputy Commissioner of Taxation in the sum of $144,854.21 with costs;    (i)

in lieu thereof order that the application for summary judgment be dismissed;(ii)

further order that the application of 19 June 2001 be adjourned for further consideration by the District Court as to directions for trial;(iii)

(iv) order that the respondent Deputy Commissioner of Taxation pay the appellant’s costs of the appeal to be assessed.

CATCHWORDS:

INCOME TAX AND RELATED LEGISLATION – COLLECTION AND RECOVERY OF TAX – PROCEEDINGS FOR RECOVERY - SUMMARY JUDGMENT - appeal against summary judgment in favour of the respondent by appellants / company directors for failure to comply with s 222AOB of Income Tax Assessment Act 1936 (Qld) – whether there was a defence to the claim pursuant to s 222AOJ of the Act such that the appellants did not take part in the management of the company

Income Tax Assessment Act 1936 (Qld), s 220 AAM, s 222 AOB, s 222 AOC, s 222 AOE, s 222 AOJ
Uniform Civil Procedure Rules 1999 (Qld), r 292

COUNSEL:

Mr L W Lister on his own behalf and by leave appeared for Mrs K P Lister
P G Bickford for the respondent

SOLICITORS:

Mr L W Lister on his own behalf and by leave appeared for Mrs K P Lister
Australian Taxation Office Legal Practice (Townsville) for the respondent

DAVIES JA: I agree with the reasons for judgment of Williams JA and with the orders he proposes.

WILLIAMS JA: The appellants (husband and wife) appeal against decisions of a District Court judge giving summary judgment in favour of the respondent in separate, but substantially identical, actions brought against each appellant.

It is convenient to deal first with the proceeding (which was numbered D156/00 in the Townsville registry) brought by the respondent against the male appellant.

The statement of claim alleged that the male appellant was a director of Keencliff Pty Ltd (“the company”) continuously during the period 1 July 1998 to 31 January 2000. The pleading then alleged that the company made deductions for purposes of Division 2 of Part VI and Division 1AAA of the Income Tax Assessment Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deputy Commissioner of Taxation v Lister

Details

AGLC: Deputy Commissioner of Taxation v Lister [2002] QCA 270
Case: [2002] QCA 270
Decision Date: 30 July 2002

CaseChat Overview and Summary

The Deputy Commissioner of Taxation sought to recover tax from the Listers, who were directors of a company, under provisions of the Income Tax Assessment Act 1936 (Qld). The Commissioner applied for summary judgment, which was granted in the District Court. The Listers appealed the decision, arguing that they were not liable for the tax because they did not participate in the management of the company, as required by section 222AOJ of the Act.

The key legal issue for the court was whether the Listers had a defence to the claim for tax under section 222AOJ of the Act, which provides an exception for directors who did not take part in the management of the company. The court needed to determine whether the Listers were in fact managing directors or whether they were non-participating directors who could rely on the exception. The court considered evidence about the roles and responsibilities of the Listers in the company and their involvement in its operations.

The court found that Leonard Warburton Lister had actively participated in the management of the company and therefore could not rely on the exception provided by section 222AOJ of the Act. However, Kathleen Patricia Lister had not participated in the management of the company to the same extent and could therefore rely on the exception. The court allowed the appeal by Kathleen Patricia Lister and set aside the judgment in her favour, ordering the Commissioner to pay her costs of the appeal. The court dismissed the appeal by Leonard Warburton Lister and ordered him to pay the costs of the appeal.

The court made orders dismissing the appeal by Leonard Warburton Lister and allowing the appeal by Kathleen Patricia Lister. The court set aside the judgment in favour of the Deputy Commissioner of Taxation in relation to Kathleen Patricia Lister and ordered the Commissioner to pay her costs of the appeal. The court also ordered that the application for summary judgment be dismissed and that the application of 19 June 2001 be adjourned for further consideration by the District Court as to directions for trial.

Orders

Orders of the court

Dismiss the appeal by Leonard Warburton Lister against the judgment in D156/00 with costs;1.

With respect to the appeal by Kathleen Patricia Lister against the judgment in D157/00: 2.

allow the appeal and set aside the judgmentin favour of the Deputy Commissioner of Taxation in the sum of $144,854.21 with costs; (i)

in lieu thereof order that the application for summary judgment be dismissed;(ii)

further order that the application of 19 June 2001 be adjourned for further consideration by the District Court as to directions for trial;(iii)

(iv) order that the respondent Deputy Commissioner of Taxation pay the appellant’s costs of the appeal to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Deputy Commissioner of Taxation v Lister & Anor [2002] QCA 270
PARTIES:	DEPUTY COMMISSIONER OF TAXATION (plaintiff / respondent) v LEONARD WARBURTON LISTER KATHLEEN PATRICIA LISTER (defendants / appellants)
FILE NO/S:	Appeal No 196 of 2002 DC No 156 of 2000 DC No 157 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	30 July 2002
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2002
JUDGES:	Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDERS:	Dismiss the appeal by Leonard Warburton Lister against the judgment in D156/00 with costs;1. With respect to the appeal by Kathleen Patricia Lister against the judgment in D157/00: 2. allow the appeal and set aside the judgmentin favour of the Deputy Commissioner of Taxation in the sum of $144,854.21 with costs; (i) in lieu thereof order that the application for summary judgment be dismissed;(ii) further order that the application of 19 June 2001 be adjourned for further consideration by the District Court as to directions for trial;(iii) (iv) order that the respondent Deputy Commissioner of Taxation pay the appellant’s costs of the appeal to be assessed.
CATCHWORDS:	INCOME TAX AND RELATED LEGISLATION – COLLECTION AND RECOVERY OF TAX – PROCEEDINGS FOR RECOVERY - SUMMARY JUDGMENT - appeal against summary judgment in favour of the respondent by appellants / company directors for failure to comply with s 222AOB of Income Tax Assessment Act 1936 (Qld) – whether there was a defence to the claim pursuant to s 222AOJ of the Act such that the appellants did not take part in the management of the company Income Tax Assessment Act 1936 (Qld), s 220 AAM, s 222 AOB, s 222 AOC, s 222 AOE, s 222 AOJ Uniform Civil Procedure Rules 1999 (Qld), r 292
COUNSEL:	Mr L W Lister on his own behalf and by leave appeared for Mrs K P Lister P G Bickford for the respondent
SOLICITORS:	Mr L W Lister on his own behalf and by leave appeared for Mrs K P Lister Australian Taxation Office Legal Practice (Townsville) for the respondent