Hispidus Pty Ltd v Deputy Commissioner of Taxation

[1994] QCA 522

COURT OF APPEAL

[1994] QCA 522

MACROSSAN CJ
McPHERSON JA
LEE J

Appeal No 182 of 1994

HISPIDUS PTY LTD  Appellant (Respondent)

and

DEPUTY COMMISSIONER OF TAXATION      Respondent (Applicant)

BRISBANE

..DATE 11/11/94

JUDGMENT

THE CHIEF JUSTICE:  For myself I would grant the adjournment which is sought on terms.  I am influenced by that notwithstanding the lack of merit in the written submissions which have been lodged to date by the fact that, as I understand it, Mr Owen who has been refused leave to appear on behalf of the company today has been permitted to appear by leave below and has not received any intimation that any application for leave would be opposed.

McPHERSON JA:  In my view no proper basis for an adjournment of this appeal has been shown before us.  I would consequently refuse the application for an adjournment.

LEE J:  For my part I agree with the remarks of the Chief Justice and would grant the adjournment on terms.

THE CHIEF JUSTICE:  That being so I would propose that the Court order that unless within 14 days of today the sum of $5,000 be paid to the Registrar of the Court as security for the costs of the appeal, the appeal against the order made herein on 1 September 1994 stand dismissed with costs.  The matter will be adjourned to the Registrar of the Court of Appeal to a date to be fixed, that is subject to the first order I have made and the cost of the adjournment should be the costs in the appeal.

McPHERSON JA:  I agree with the order that is proposed with respect to order as to security.

LEE J:  And I agree with that.

THE CHIEF JUSTICE:  That then will be the order of the Court.

MR OWEN:  Can I just say a few words, Your Honour.  The opposition, the Deputy of Taxation, I have a claim for costs on them through them, well Hispidus, with Justice Shepherdson's decision No 294.

THE CHIEF JUSTICE:  You have an order for costs in your favour.

MR OWEN:  Yes, against the other side.

THE CHIEF JUSTICE:  But if you are asking for some set-off, no, but it would be up to you to enforce any order that you have in your favour on some other occasion.

MR OWEN:  It is just that the company will be the beneficiary of that amount, so that would then go to the liquidators, Your Honour, and then that would not be allowed to be used to offset this $5,000.  I was just seeking leave that if the Court could order that the first set of costs that were awarded in our favour be used for that guarantee or that deposit.

THE CHIEF JUSTICE:  No, Mr Owen, I am not proposing - to the extent that I am speaking for the three of us here - I am not proposing that there be any offset against the order for security made today.  The two orders will remain independent in their operation.

McPHERSON JA:  I agree.  The order for costs in favour of the company is one of its assets and belongs to the company.  This is simply an order that the money be paid and if it is not paid, the appeal will stand dismissed.

LEE J:  I agree also.

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