Trojan v Corporation of Hindmarsh

[1987] FCA 276

NOT FOR DISTRIBUTION

IN THE: FEDERAL COURT OF AUSTRALIA )

1

SOUTH WACEs DISTRICT Rm;ISTRe ) No. G69 of 1987

1

DIVISIOly

1

9N APPFAL from the Taxation

Appeals Division of the

Administrative Appeals Tribunal

constituted by Dr. P. Gerber

and Hr. K. L. Beddoe

-:

WFAH PTY. LIMITED

Applicant

AND:

COMMISSIONER OF TAXATION

Respondent

MINUTE OF ORDER

JUDGE:	FOX J.
DATE OF ORDER:	14 May 1987
WHERE W E :	Sydney.
THE COURT ORDERS THAT:

1. The application for an extension of time for the filing

and serving of a notice of appeal be dismissed with

costs.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH HALE3 DISTRICT RECISTRY	)	No. G69 of 1987
)

DIVISIOY

1

ON APPEAL from the Taxation

Appeals Division of the

Administrative Appeals Tribunal

constituted by Dr. P.Gerber

and Mr. K.L. Beddoe

BEmEEN:

HAPFAM PTY. LIMITED

Applicant

m:

COMMISSIONER OF TAXATION

Respondent

m: FOX J.

U : 14 MAY 1987

-0NS FOR JUDGMENT

M TENPORE

This is M application for an extension of time in which to file a notice of appeal to this Court from a decision of the Administrative Appeals Tribunal dealinq with a taxation reference.

The decision in question was delivered on 10 November

1986, but the letter enclosing it, which was sent on that day,

was not received by the applicant until 17 November.

The principal of the applicant was then overseas and did

,/ not return until 26 November 1986 and there was then the

r

necessity of considering the matter and getting legal advice

which was not forthcoming until early February 1987, at which

time a decision was made. The present application was filed on

17 February 1987,	that	is, two months after the expiry	of the
stipulated time.

There were no grounds beyond the matters mentioned as to

why the discretion of the Court should be exercised.in favour of

the applicant. In particular, no submissions were made by the

applicant on the likelihood of success of an appeal.

The appeal to this Court from the Administrative Appeals

Tribunal in taxation matters is the same a6 with appeals

generally from that Tribunal, namely on a question of law only.

In the present case the applicant claimed an investment

allowance deduction under Division 3, Subdivision B of the Jncome

Tax h8se8sU1ent Act 1936 in respect of an amount of $20,600 which

was spent on the erection of a glasshouse, used for plant

propagation.

The tribunal regarded the principal issue as one whether

the glasshouse was a "structural improvement" within the meaning

of s.82AE of the Act and there is nothing to show that they were

in error in so doing.

"hat the glasshouse was an item of plant within the meaning of 8.54 of the Act has not been disputed. It seems to me

3 .

I

,

P' plain enough that if s.83AE is applied on the footing that the

P glasshouse does not fall within the exceptions itemised in

sub-paragraphs (b)(i) to (vi), it is ineligible for the

Investment allowance under Subdivision B. Whether it is, or is

not. a "structural improvement" and whether it does, or does not,

fall within any of the sub-paragraphs which I have mentioned, was

treated before the Tribunal as a question of fact and so far as I

can see was simply a question of fact.

It is my view, on the evidence, that the glasshouse was

a "structural improvement" and therefore that it was not eligible

for investment allowance. As I have said, the decision that the glasshouse was a "Structural improvement", in the context of what the tribunal decided and what has been put to me. seems to be

substantially a question of fact. At all events, I am not

satisfied it is otherwise. Being a "structural improvement", the

glasshouse clearly fails to satisfy the particular sub-paragraphs

of para.82AE(b) and in the terms of the opening words of that

section. Subdivision B of the Act does not apply in relation to

it.

In the circumstances it seems to me that leave should be

refused and this I do. The order is that the application be

refused and that the applicant pay the respondent's costs.

I certify that this and the two (2) preceding pages are a

true copy of the Reasons for

Mr. J u s t i c ~ ~ -	Judgment	herein of his Honour
Aasociate

Dated: 14 Ma 19

' . 4 .

Counsel for the Applicant: Mr A.B.K. Lewis

Solicitors for the Applicant:

Messrs A.S.Lanrock & Son

Counsel for the Respondent:

Mr B.A. Coles

Solicitors for the Respondent:

Australian Government

Solicitor

Date of hearing: 14 Map 1987

Date Judgment delivered: 14 May 1987