Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd - [2015] NSWCA 402

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402
Hearing dates: 7 December 2015
Decision date: 16 December 2015
Before: Gleeson JA at [1];
Leeming JA at [2];
Emmett AJA at [57]
Decision:
Appeal dismissed, with costs.

Catchwords:
AGENCY – agent's right of reimbursement from principal – freight forwarder appointed as customs agent by financier – contract providing no liability for duties and taxes – no claim available in contract or restitution – Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; 233 CLR 635 applied

CUSTOMS – customs duty payable by owner of goods – definition of "owner" – freight forwarder entered goods for home consumption as agent for financier – freight forwarder and financier both "owners" and both primarily liable to pay customs duty

JURISDICTION – District Court – whether restitutionary claim within jurisdiction – District Court Act 1973 (NSW), s 44(1)(a)
TAXATION – GST – taxable importation – freight forwarder entered imported goods for home consumption as agent for financier – invoice and air waybill described financier as owner and consignee – whether financier "imported" the goods for purpose of making taxable importation
Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 13-5, 13-15
Civil Aviation (Carriers' Liability) Act 1959 (Cth)
Customs Act 1901 (Cth), ss 4, 68, 165, 181, 183
District Court Act 1973 (NSW), ss 44, 127
Supreme Court Act 1970 (NSW), s 53
Cases Cited: Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited [2000] HCA 25; 202 CLR 588
Chief Executive Officer of Customs v Tony Longo Pty Ltd [2001] NSWCA 147; 52 NSWLR 458
Emery Air Freight Corporation v Merck Sharpe & Dohme (Aust) Pty Ltd [1999] NSWCA 415; 47 NSWLR 696
Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531
Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 33
Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27; 232 CLR 635
Maviglia v Maviglia [1999] NSWCA 188
Re Clune; Ex parte Verge v Isabella Nominees Pty Ltd (in liq) (1988) 14 ACLR 261
Siemens Ltd v Schenker International (Australia) Pty Ltd [2004] HCA 11; 216 CLR 418
Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664
Texts Cited: Halsbury’s Laws of England (5th ed, 2008), vol 1
Category: Principal judgment
Parties: Mega-top Cargo Pty Ltd (Appellant)
Moneytech Services Pty Ltd (Respondent)
Representation:
Counsel:
T Hall, solicitor (Appellant)
C D Wood, J K Raftery (Respondent)
Solicitors:
Hall Partners (Appellant)
Berry Buddle Wilkins Lawyers (Respondent)

File Number(s): 2015/151853
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

30 April 2015

Before:

Olsson DCJ

File Number(s):

2014/245779

Judgment

GLEESON JA: I agree with Leeming JA.
LEEMING JA: The appellant, Mega-top Cargo Pty Ltd, appeals from a…

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.

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Details

Case: [2015] NSWCA 402
Decision Date: 16 December 2015

CaseChat Overview and Summary

Mega-top Cargo Pty Ltd (Mega-top) and Moneytech Services Pty Ltd (Moneytech) were the parties involved in this dispute before the Court of Appeal of New South Wales. The core of the disagreement concerned Mega-top's claim for reimbursement from Moneytech for customs duties and GST paid by Mega-top in relation to imported goods. Mega-top, a freight forwarder, had acted as a customs agent for Moneytech, a financier, in clearing these goods.

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether Mega-top had a contractual right to reimbursement from Moneytech, particularly in light of a contract that purportedly excluded Mega-top's liability for duties and taxes. Secondly, the court needed to assess whether a claim in restitution was available to Mega-top, and if so, whether such a claim fell within the jurisdiction of the District Court of New South Wales. Finally, the court had to determine whether Moneytech could be considered to have "imported" the goods for the purpose of making a taxable importation, thereby rendering it liable for GST.

In its reasoning, the Court of Appeal applied the principles established in *Lumbers v W Cook Builders Pty Ltd (in liq)* [2008] HCA 27; 233 CLR 635, which limits the availability of restitutionary claims where a contract governs the relationship between the parties. The court found that the contract between Mega-top and Moneytech did not provide a basis for Mega-top's claim for reimbursement of duties and taxes. Furthermore, the court determined that Mega-top's claim in restitution was not available in these circumstances. The court also considered the definition of "owner" under customs law, noting that both Mega-top and Moneytech could be considered "owners" and thus primarily liable for customs duty. Regarding GST, the court found that Moneytech was not the party who had "imported" the goods for the purpose of a taxable importation.

Consequently, the appeal brought by Mega-top was dismissed, and Mega-top was ordered to pay Moneytech's costs.

Orders

Orders of the court

Appeal dismissed, with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402
Hearing dates:	7 December 2015
Decision date:	16 December 2015
Before:	Gleeson JA at [1]; Leeming JA at [2]; Emmett AJA at [57]
Decision:	Appeal dismissed, with costs.
Catchwords:	AGENCY – agent's right of reimbursement from principal – freight forwarder appointed as customs agent by financier – contract providing no liability for duties and taxes – no claim available in contract or restitution – Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; 233 CLR 635 applied CUSTOMS – customs duty payable by owner of goods – definition of "owner" – freight forwarder entered goods for home consumption as agent for financier – freight forwarder and financier both "owners" and both primarily liable to pay customs duty JURISDICTION – District Court – whether restitutionary claim within jurisdiction – District Court Act 1973 (NSW), s 44(1)(a) TAXATION – GST – taxable importation – freight forwarder entered imported goods for home consumption as agent for financier – invoice and air waybill described financier as owner and consignee – whether financier "imported" the goods for purpose of making taxable importation
Legislation Cited:	A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 13-5, 13-15 Civil Aviation (Carriers' Liability) Act 1959 (Cth) Customs Act 1901 (Cth), ss 4, 68, 165, 181, 183 District Court Act 1973 (NSW), ss 44, 127 Supreme Court Act 1970 (NSW), s 53
Cases Cited:	Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited [2000] HCA 25; 202 CLR 588 Chief Executive Officer of Customs v Tony Longo Pty Ltd [2001] NSWCA 147; 52 NSWLR 458 Emery Air Freight Corporation v Merck Sharpe & Dohme (Aust) Pty Ltd [1999] NSWCA 415; 47 NSWLR 696 Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 33 Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27; 232 CLR 635 Maviglia v Maviglia [1999] NSWCA 188 Re Clune; Ex parte Verge v Isabella Nominees Pty Ltd (in liq) (1988) 14 ACLR 261 Siemens Ltd v Schenker International (Australia) Pty Ltd [2004] HCA 11; 216 CLR 418 Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664
Texts Cited:	Halsbury’s Laws of England (5th ed, 2008), vol 1
Category:	Principal judgment
Parties:	Mega-top Cargo Pty Ltd (Appellant) Moneytech Services Pty Ltd (Respondent)
Representation:	Counsel: T Hall, solicitor (Appellant) C D Wood, J K Raftery (Respondent) Solicitors: Hall Partners (Appellant) Berry Buddle Wilkins Lawyers (Respondent)
File Number(s):	2015/151853
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 30 April 2015 Before: Olsson DCJ File Number(s): 2014/245779