Ellison v Sandini Pty Ltd (No. 2)

[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