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
Details
AGLC
Trojan v Corporation of Hindmarsh [1987] FCA 276
Case
[1987] FCA 276
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Warham Pty Limited sought an extension of time to file a notice of appeal against a decision of the Administrative Appeals Tribunal regarding a taxation matter. The Tribunal had delivered its decision on 10 November 1986, but the applicant did not receive it until 17 November 1986 due to its principal being overseas. Legal advice was not obtained until early February 1987, leading to the application for an extension being filed on 17 February 1987, well beyond the stipulated time limit. The applicant did not provide any grounds beyond the mentioned circumstances for the court to exercise its discretion in their favour.
The legal issues before the court were whether to grant the applicant an extension of time to file a notice of appeal and, if so, whether an appeal from the Tribunal's decision should be allowed. The primary issue was whether the glasshouse constructed by the applicant qualified as a "structural improvement" under the relevant section of the Income Tax Assessment Act 1936. This was treated as a question of fact by the Tribunal, and the court found that the glasshouse did indeed qualify as a "structural improvement". As a result, the glasshouse was ineligible for the investment allowance deduction claimed by the applicant.
The court found that the application for an extension of time should be dismissed with costs. The court reasoned that the applicant did not provide sufficient grounds for the court to exercise its discretion in their favour, and there were no submissions on the likelihood of success of an appeal. The court further determined that the glasshouse was a "structural improvement", and therefore not eligible for the investment allowance. The applicant's appeal was dismissed, and they were ordered to pay the respondent's costs.