KVPS International Pty Ltd v DCT
[2008] FMCA 1632
•18 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KVPS INTERNATIONAL PTY LTD v DCT | [2008] FMCA 1632 |
| PRACTICE & PROCEDURE – No jurisdiction. |
| Corporations Act 2001, ss.459G, 588AA Federal Magistrates Act 1999 Federal Magistrates Court Rules 2001 |
| Applicant: | KVPS INTERNATIONAL PTY LTD AS TRUSTEE FOR KVPS FAMILY TRUST |
| Respondent: | DEPUTY COMMISSIONER OF TAXATION |
| File Number: | SYG 2787 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 November 2008 |
| Date of Last Submission: | 18 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2008 |
REPRESENTATION
| Solicitors for the Applicant: | M S Nair & Co |
| Counsel for the Respondent: | Mr Jones |
| Solicitors for the Respondent: | ATO Legal Services |
ORDERS
Application dismissed
Applicant to pay the Respondent's costs assessed in the sum of $400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2787 of 2008
| KVPS INTERNATIONAL PTY LTD AS TRUSTEE FOR KVPS FAMILY TRUST |
Applicant
And
| DEPUTY COMMISSIONER OF TAXATION |
Respondent
REASONS FOR JUDGMENT
There comes before me today an application, numbered SYG2787/2008, filed in this court on 28 October 2008, seeking to set aside a statutory demand issued by the Commissioner of Taxation upon a company known as KVPS International Pty Ltd as trustee for a family trust. The Commissioner seeks that the application be dismissed on the grounds that this court has no jurisdiction under the Corporations Act 2001 (the “Act”) and that the non‑existence of this jurisdiction would not allow the court to transfer the matter to the Federal Court pursuant to the Federal Magistrates Act 1999 or Federal Magistrates Court Rules 2001 Part 8 Rule 8.02. The applicant, whilst agreeing to a transfer of the matter to the Federal Court, argues that this court does have jurisdiction by virtue of the way in which the notice itself is worded.
I am satisfied that the substantive legislation, namely s.459G and s.588AA of the Act, make it clear that any application to set aside a notice must be made to a court as defined in s.588AA. That being the case it is not open to this court to transfer the proceedings to the Federal Court because the ability to transfer assumes the existence of jurisdiction in this court. If there is no jurisdiction the court cannot transfer the matter or deal with any argument relating to the matter other than an argument as to whether jurisdiction exists or not. As inconvenient as this might be for the applicant I feel obliged to dismiss the application.
It is perhaps regrettable that this court does not have jurisdiction under the Act because the ability to deal with matters under s.459G would be a particularly apt utilisation of the court's judicial officers and would provide the opportunity for these matters to be dealt with speedily, cheaply and more simply than the bringing of the applications in a superior court. This, however, is a wish long‑held by the Federal Magistrates Court that has yet to be granted by the executive.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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