Tey v Commissioner of Taxation (No 2)

Case [2007] FCA 1083

FEDERAL COURT OF AUSTRALIA

Tey v Commissioner of Taxation (No 2) [2007] FCA 1083

KOK YONG TEY v COMMISSIONER OF TAXATION
WAD24 OF 2007

GILMOUR J
6 JULY 2007
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD24 OF 2007

BETWEEN:

KOK YONG TEY
Applicant

AND:

COMMISSIONER OF TAXATION
Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

6 JULY 2007

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The applicant pay the respondent’s costs of the application to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD24 OF 2007

BETWEEN:

KOK YONG TEY
Applicant

AND:

COMMISSIONER OF TAXATION
Respondent

JUDGE:

GILMOUR J

DATE:

6 JULY 2007

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. On 18 June 2007 I dismissed the applicant’s application for an order for the extension of time to file and serve a notice of appeal.

  2. At that time I adjourned the question of costs to enable the applicant to obtain legal advice and to file, if she so wished, any materials in support of her submission that I should not order her to pay the costs of the respondent.

  3. The applicant has sworn and filed an affidavit dated 5 July 2007.  In this she, in effect, seeks to reargues her application on the merits, taking issue with the order of dismissal made by me on 18 June 2007.  Before me today in oral submissions she has repeatedly attempted to do that also.  Such submissions are obviously irrelevant to the question of costs which is the only outstanding issue in respect to her application. 

  4. In her affidavit she deposes to anticipating that her income for the financial year 2006/07 will be below $10,000 gross.  This has no relevant bearing on any costs order which I might make today. 

  5. As the respondent submits, and I accept, in the absence of special circumstances, costs follow the event and any costs order should reflect the degree of success attained: Hughes v Western Australia Cricket Association (1986) ATPR 40-748 at 48,136.

  6. In my opinion, there are no special circumstances relevant to the applicant’s case on the question of costs.  I find the applicant’s explanation for her delay in filing a notice of appeal to be unsatisfactory.  I also find in any event that her several proposed grounds of appeal have no prospect of success.  

  7. In those circumstances the applicant should be ordered to pay the respondent’s costs of the application to be taxed and I so order.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        25 July 2007

The Applicant appeared in person:
Counsel for the Respondent: Ms F Humphries
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 6 July 2007
Date of Judgment: 6 July 2007
Details
AGLC
Tey v Commissioner of Taxation (No 2) [2007] FCA 1083
Case
[2007] FCA 1083
Decision Date

CaseChat Overview and Summary

The matter of Tey v Commissioner of Taxation (No 2) involved the applicant, Tey, and the respondent, the Commissioner of Taxation. The nature of the dispute was an application for costs following an earlier decision in which the court found in favour of the Commissioner. The case was heard in the Federal Court of Australia.

The central legal issues that the court had to address were whether the applicant was entitled to a costs order and, if so, the extent of that order. This involved an assessment of the applicant's success in the proceedings, the conduct of both parties, and the principles governing costs orders in such circumstances.

The court deliberated on the principles of costs in litigation, which generally favour the prevailing party unless there are exceptional circumstances justifying a departure from that rule. The court considered the nature of the relief sought by the Commissioner, which was a relatively straightforward application of tax law. The court noted that the applicant had not succeeded on any significant point of law or fact that would warrant a costs order in their favour. Additionally, the court considered the conduct of both parties, finding that the applicant's application for costs was not supported by any exceptional circumstances. Consequently, the court found that the applicant should bear the costs of the application to be taxed, and ordered that the applicant pay the respondent’s costs of the application to be taxed.

Orders

Orders of the court

1. The applicant pay the respondent’s costs of the application to be taxed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GILMOUR J

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Ratio Decidendi

Legal Principle Established

Established by: GILMOUR J

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