Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation

In the case of Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation, the Full Court of the Supreme Court of South Australia addressed an appeal brought by Institute Taxation Research Pty Ltd against orders that it be joined as a party in the proceedings and that it pay costs on an indemnity basis. The appellant, Institute Taxation Research Pty Ltd, sought to discontinue the appeal by filing a Notice of Discontinuance on the day of the hearing, after the respondent had indicated it would seek indemnity costs. The central legal issues were whether the Notice of Discontinuance complied with the Rules of Court, whether the appeal should be dismissed for non-compliance, and whether the respondent was entitled to indemnity costs.

The court determined that the Notice of Discontinuance did not comply with the Rules of Court as it was not filed in the prescribed manner and was sent by facsimile. Consequently, the Registry was justified in refusing the Notice. The court found that the appeal should be dismissed for non-appearance, but it also held that even if the Notice had been properly filed, the respondent would still be entitled to seek indemnity costs under Rule 95.07 of the Supreme Court Rules. The court reasoned that the filing of the Notice of Discontinuance did not prevent the respondent from applying for costs on an indemnity basis if the appeal was dismissed. Additionally, the court did not find the filing of the Notice to be an abuse of process, as the onus was on the respondent to prove that the predominant purpose was to keep the appellant out of indemnity costs.

Ultimately, the Full Court agreed that the conduct of the appellant warranted an order for indemnity costs. The court found that the appeal had no prospect of success and was merely a tactical maneuver to avoid taxation obligations. The court dismissed the appeal and ordered that the appellant pay the respondent’s costs on an indemnity basis.