Vickers v Taccone - [2005] NSWSC 578

CITATION:
Vickers v Taccone [2005] NSWSC 578

HEARING DATE(S): 8 June 2005

JUDGMENT DATE :

8 June 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Order in respect of possible capital gains tax liability refused.

CATCHWORDS:
PROCEDURE [748] - Miscellaneous procedural matters - Declarations - Appropriate form of relief - Discretion of court - Other cases - Suit for damages for breach of contract for sale of land - Possible capital gains tax liability on judgment - Liability undetermined at date of hearing - Declaration sought that defendant indemnify plaintiff for any capital gains tax payable - No real possibility of capital gains tax liability demonstrated.

CASES CITED:
Duke Group Ltd (In Liquidation) v Pilmer (1999) 73 SASR 64
Provan v HCL Real Estate Ltd (1992) 24 ATR 238; 9 BPR 16,895
Vickers v Taccone [2005] NSWSC 514

PARTIES:
Graeme Arthur Vickers (P & XD)
Augusta Taccone (1D & 1XC)
Anthony Taccone (2D & 1XC)
Geraway Pty Limited (3D & 2XC)

FILE NUMBER(S):
SC 5866/02

COUNSEL:
D Murray, Solicitor (P & XD)
G Barry Hall (1 & 2Ds & 1XCs)
M Andrews, Solicitor (3D & 2XC)

SOLICITORS:
Lane & Lane (P & XD)
J P Lawyers (1 & 2Ds & 1XCs)
Minter Ellison (3D & 2XC)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 8 JUNE 2005

5866/02 GRAEME ARTHUR VICKERS v AUGUSTA TACCONE & ORS

JUDGMENT

1 HIS HONOUR: In this matter, short minutes are laid before me this morning to permit orders to be made to give effect to the reasons for judgment I have delivered in these proceedings: Vickers v Taccone [2005] NSWSC 514. I do not propose to make orders for costs at the moment, and those orders will be excluded from the short minutes.

2 The only matter about which there has been controversy in court is whether an order can or may be made in the form sought by the plaintiff, that the first and second defendants are to pay any capital gains tax liability on the plaintiff as executor of the relevant estate, if it is claimed by the Commissioner of Taxation that there is such liability.

3 It is true, as Mr D Murray for the plaintiff has said this morning, that the inclusion of such a claim was opened at the commencement of the trial and mentioned during it. However, no argument was put to me at the trial by reference to the provisions of taxation law or evidence of any practice of the Taxation Commissioner or the view of any expert as to the likelihood and quantum of any capital gains tax, nor is any such detailed matter laid before me today. We are at the very heel of the hunt and I am not inclined to allow the matter to be stood over or protracted or reopened so as to permit such material to be brought forward at this very late stage. In fact no such application has actually…

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 Vickers v Taccone

Details

AGLC: Vickers v Taccone [2005] NSWSC 578
Case: [2005] NSWSC 578
Decision Date: 8 June 2005

CaseChat Overview and Summary

Vickers v Taccone is a case before the court involving a dispute over a contract for the sale of land. The plaintiff, Vickers, is seeking damages for the breach of the contract, and the defendant, Taccone, is alleged to have breached the contract. The court was tasked with determining whether Vickers is entitled to a declaration that Taccone indemnify him for any capital gains tax that might be payable if Vickers were to receive a damages judgment. This would require Taccone to compensate Vickers for any potential capital gains tax liability.

The primary legal issue was whether the court should grant Vickers' request for a declaration that Taccone indemnify Vickers for any capital gains tax that might arise from a damages judgment. The court considered the appropriate form of relief, the discretion involved, and the possibility of capital gains tax liability. The court examined the nature of the declaration sought and whether it was appropriate to make such a declaration given that there was no real possibility of capital gains tax liability at the time of the hearing.

The court concluded that Vickers had not demonstrated a real possibility of capital gains tax liability. Therefore, the court exercised its discretion and declined to grant the declaration sought. The court found that Vickers had not met the threshold required to compel Taccone to indemnify Vickers for any potential capital gains tax liability. The court's decision was based on the absence of a real possibility of capital gains tax, and the court's discretion to grant such a declaration was exercised in favour of denying the relief sought by Vickers.

Orders