Ellison v Sandini Pty Ltd (No. 2)

Case [2018] FCAFC 67

FEDERAL COURT OF AUSTRALIA

Ellison v Sandini Pty Ltd (No. 2) [2018] FCAFC 67

Appeal from:

Sandini Pty Ltd v Commissioner of Taxation [2017] FCA 287

Sandini Pty Ltd v Commissioner of Taxation (No 2) [2017] FCA 905
File number(s): WAD 172 of 2017
WAD 173 of 2017
Judge(s): SIOPIS, LOGAN AND JAGOT JJ
Date of judgment: 3 May 2018
Catchwords: PRACTICE AND PROCEDURE – submissions after the initial judgment as to costs – apportionment as to costs.
Date of hearing: Determined on the papers
Date of last submissions: 27 April 2018
Registry: Western Australia
Division: General Division
National Practice Area: Taxation
Category: Catchwords
Number of paragraphs: 1
Counsel for Ms Ellison: Mr S Owen-Conway QC
Solicitor for Ms Ellison: Park Legal Solutions
Counsel for the Commissioner of Taxation: Mr J Hmelnitsky SC with Mr D Hume
Solicitor for the Commissioner of Taxation: Australian Government Solicitor
Counsel for Sandini Pty Ltd: Mr F D O’Loughlin
Solicitor for Sandini Pty Ltd: Jackson McDonald
Table of Corrections
9 May 2018 “Counsel for Sandini Pty Ltd:  Mr S H P Steward QC with Mr F D O’Loughlin”, has been replaced with: “Counsel for Sandini Pty Ltd:  Mr F D O’Loughlin”.

ORDERS

WAD 172 of 2017
BETWEEN:

DEBBIE MAREE ELLISON

First Appellant

WAVEFRONT ASSET PTY LTD (ACN 139 479 968) ATF THE FELSTEAD FAMILY TRUST

Second Appellant
AND:

SANDINI PTY LTD (ACN 008 921 417) ATF THE KARRATHA RIGGING UNIT TRUST

First Respondent

WABELO PTY LTD (ACN 008 921 426) ATF THE ELLISON FAMILY TRUST

Second Respondent

CHRISTOPHER JAMES ELLISON (and others named in the Schedule)

Third Respondent
WAD 173 of 2017
BETWEEN:

COMMISSIONER OF TAXATION
First Appellant
AND:

SANDINI PTY LTD (ACN 008 921 417) ATF THE KARRATHA RIGGING UNIT TRUST

First Respondent

WABELO PTY LTD (ACN 008 921 426) ATF THE ELLISON FAMILY TRUST

Second Respondent

CHRISTOPHER JAMES ELLISON (and others named in the Schedule)

Third Respondent

JUDGES:

SIOPIS, LOGAN AND JAGOT JJ

DATE OF ORDER:

3 MAY 2018

THE COURT ORDERS THAT:

1.The first to fourth respondents in WAD 173 of 2017 (the Sandini parties) pay the  costs of the appeals of the Commissioner of Taxation as agreed or taxed.

2.The Sandini parties pay eighty per cent (80%) of the costs of the appeals of Debbie Maree Ellison and Wavefront Asset Pty Ltd (ACN 139 479 968) ATF The Felstead Family Trust (the Wavefront parties).

3.Order 1 of the orders made on 7 August 2017 be set aside.

4.In lieu of order 1, the Sandini parties pay the costs of the Commissioner of Taxation and eighty per cent (80%) of the costs of the Wavefront parties in the proceedings below, as agreed or taxed.

5.No order as to costs between the Commissioner of Taxation and the Wavefront parties in the appeals or the proceedings below.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

  1. Having regard to the degree of forensic success and failure in respect of the issues which arose for determination on the appeal and the ultimate outcome, the Court considers that, as between the Sandini parties and the Wavefront parties, there ought to be an apportionment of costs both in respect of the appeal and the proceedings below.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis, Logan and Jagot.

Associate:  

Dated:        3 May 2018


SCHEDULE OF PARTIES

WAD 172 of 2017

Respondents

Fourth Respondent:

ELLISON (WA) PTY LTD (ACN 135 966 773)

Fifth Respondent:

COMMISSIONER OF TAXATION

WAD 173 of 2017

Respondents

Fourth Respondent:

ELLISON (WA) PTY LTD (ACN 135 966 773)

Fifth Respondent:

DEBBIE MAREE ELLISON

Sixth Respondent:

WAVEFRONT ASSET PTY LTD (ACN 139 479 968) ATF THE FELSTEAD FAMILY TRUST
Details
AGLC
Ellison v Sandini Pty Ltd (No. 2) [2018] FCAFC 67
Case
[2018] FCAFC 67
Decision Date

CaseChat Overview and Summary

Ellison v Sandini Pty Ltd (No. 2) involved multiple parties with a dispute over tax assessments and related costs. The respondents, Sandini Pty Ltd and others, were engaged in litigation with the Commissioner of Taxation and Debbie Maree Ellison, along with Wavefront Asset Pty Ltd, over tax liabilities. The case was heard in the Federal Court of Australia, where the primary focus was on the allocation of costs between the parties involved in the legal proceedings.

The court was tasked with determining the appropriate allocation of costs following an initial judgment. Specifically, the court had to decide on the costs associated with the appeals filed by the Commissioner of Taxation and the Wavefront parties. The Sandini parties contested the costs they were required to pay, arguing for a different apportionment of the expenses incurred during the litigation.

In its decision, the court ruled that the Sandini parties were to bear the costs of the Commissioner of Taxation's appeals as agreed or taxed. Additionally, they were to cover eighty per cent of the costs for the Wavefront parties' appeals. The court also set aside a previous order regarding the costs in the proceedings below and replaced it with a new order that required the Sandini parties to pay the costs of the Commissioner of Taxation and eighty per cent of the costs of the Wavefront parties in those proceedings. There was no order made regarding the costs between the Commissioner of Taxation and the Wavefront parties, either in the appeals or the proceedings below.

The final orders of the court included the apportionment of costs between the parties, setting aside and replacing an earlier order, and making specific provisions for the payment of costs in the appeals and the proceedings below. The entry of these orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The first to fourth respondents in WAD 173 of 2017 (the Sandini parties) pay the costs of the appeals of the Commissioner of Taxation as agreed or taxed.

2. The Sandini parties pay eighty per cent (80%) of the costs of the appeals of Debbie Maree Ellison and Wavefront Asset Pty Ltd (ACN 139 479 968) ATF The Felstead Family Trust (the Wavefront parties).

3. Order 1 of the orders made on 7 August 2017 be set aside.

4. In lieu of order 1, the Sandini parties pay the costs of the Commissioner of Taxation and eighty per cent (80%) of the costs of the Wavefront parties in the proceedings below, as agreed or taxed.

5. No order as to costs between the Commissioner of Taxation and the Wavefront parties in the appeals or the proceedings below.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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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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