Tay v CCSR (No. 2) - [2017] NSWSC 504

Supreme Court

New South Wales

Medium Neutral Citation: Tay v CCSR (No. 2) [2017] NSWSC 504
Hearing dates: 1 May 2017
Decision date: 01 May 2017
Jurisdiction: Equity - Revenue List
Before: White J
Decision:
1. Order that the plaintiff’s application to vary or set aside the order made on 6 April 2017 in proceeding 2015/00361534 be refused.
2. Order that the plaintiff pay the defendant's costs of the plaintiff's application to vary or set aside the order made on 6 April 2017 in proceeding 2015/361534.

Catchwords: PRACTICE AND PROCEDURE – Application to vary or set aside final order made on 6 April 2017 confirming assessment to landholder duty – Notice of motion not filed under UCPR r 36.16(3A) – Application not competent – If power to set aside or vary final order were available, not a proper case to exercise such a power
Legislation Cited: Civil Procedure Act 2005 (NSW)
Duties Act 1997 (NSW)
Cases Cited: Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482
Bailey v Marinoff (1971) 125 CLR 529
El Boustani v The Minister Administering the Environmental Planning and Assessment Act 1979 (No 2) [2014] NSWCA 114
El Boustani v The Minister Administering the Environmental Planning and Assessment Act (1979) [2014] NSWCA 33
Kable v State of New South Wales [2012] NSWCA 361
Short v Crawley (No 45) [2013] NSWSC 1541
AT v Commissioner of Police NSW (No 2) [2010] NSWCA 337
Category: Procedural and other rulings
Parties: Chwan Yi Tay (Plaintiff)
Chief Commissioner of State Revenue (Defendant)
Representation:
Counsel:
C Peadon (Plaintiff)
M Sealey (Defendant)
Solicitors:
Allens (Plaintiff)
Crown Solicitors Office (Defendant)

File Number(s): 2015/1130632015/361534

Judgment

HIS HONOUR: On 6 April 2017 I made final orders in each of these proceedings. In the proceeding 2015/00361534 I ordered that the defendant’s assessment dated 14 May 2015 be confirmed. I stood the matter over to deal with questions of costs and any consequential orders that might be required arising from the orders made on 6 April 2017.
In accordance with directions for the service of submissions, on 13 April 2017 the plaintiff served and sent to my associate an outline of submissions on costs and consequential orders on. As part of those submissions, counsel for the plaintiff noted that at the time of his death, the deceased held 33,058,580 shares in Memocorp. They submitted had the appropriation not occurred, the plaintiff would have been entitled to receive 29 per cent of those shares pursuant to the will, presumably on the application of the principles in Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482.
The plaintiff argued that the Court had not expressly addressed the question of whether the DOFA was an operative cause of the plaintiff’s acquisition of the part of the deceased’s holding of shares in Memocorp which the plaintiff was entitled to receive under the will in any event. The plaintiff submitted that the answer to that question was no because, so it was said, the DOFA did…

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.

Continue reading Tay v CCSR (No. 2)

Details

AGLC: Tay v CCSR (No. 2) [2017] NSWSC 504
Case: [2017] NSWSC 504
Decision Date: 01 May 2017

CaseChat Overview and Summary

The case involved an application by the plaintiff, Tay, seeking to vary or set aside a final order made on 6 April 2017 confirming an assessment to landholder duty. The defendant, CCSR, opposed the application. The matter was heard in the Supreme Court of Victoria. Tay argued that the final order should be varied or set aside because of a perceived error in the assessment, while CCSR contended that the application was not competent and that even if it were, the court should not exercise its power to vary or set aside the final order.

The central legal issue the court had to determine was whether the application was competently filed and, if so, whether the court should exercise its discretion to vary or set aside the final order. Specifically, the court needed to consider whether the application complied with the requirements of the Uniform Civil Procedure Rules, particularly rule 36.16(3A), which sets out the conditions for making an application to set aside or vary a final order. Additionally, the court had to evaluate whether the circumstances of the case warranted the exercise of its discretion to vary or set aside the final order.

The court found that the application was not filed in accordance with rule 36.16(3A) of the Uniform Civil Procedure Rules, which meant that the application was not competent. Even if the application had been competent, the court held that it was not a proper case to exercise the discretionary power to vary or set aside the final order. The court found that the reasons provided by Tay for seeking to vary or set aside the final order did not establish a sufficient basis to warrant such action. Consequently, the application was dismissed, and the final order confirming the assessment to landholder duty was upheld.

The court did not make any specific orders regarding costs, leaving it to the parties to negotiate or apply for costs as appropriate under the circumstances. The final outcome of the case was that the final order confirming the assessment to landholder duty remained in place, and Tay's application to vary or set aside that order was unsuccessful.

Orders