Vista Commercial Construction Pty Ltd v Deputy Commissioner of Taxation

[1997] FCA 1079

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 818 of 1997

BETWEEN:	VISTA COMMERCIAL CONSTRUCTION PTY LIMITED Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGE:	BURCHETT J
DATE:	3 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

In this matter judgment was given by Branson J last Friday, dismissing an application which had been brought before her Honour to review a decision of a Registrar on an application under s 459G of the Corporations Law. The point which proved crucial was whether there was power under s 459F to grant some extension of the demand, notwithstanding that the application under s 459G had to be dismissed. I am informed that her Honour was told that there was no authority on this point, and she delivered an ex tempore judgment, based on the concatenation of sections numbers 459F, 459G and 459H, to the effect that in the absence of a valid ground for the setting aside of the statutory demand, no extension should be granted under s 459F(2)(a)(i).

There may be some question of construction of the reasons when they finally issue, but as I understand it, her Honour's view was that there was no power in this situation to extend the time.  I am now informed that, unfortunately, those appearing before her Honour were mistaken, and that there are relevant authorities.  Indeed, I am given to understand that there may be authorities on both sides of the question, but at any rate there is an authority which has been put before me as supporting the appellant, namely, Graywinter Management Pty Ltd v Deputy Commissioner of Taxation (1996) 22 ACSR 636, a decision of Finn J. In that case, his Honour expressed some doubts, but treated two earlier unreported decisions of Jenkinson and Ryan JJ, to which he referred at p 638, as supporting the proposition that an extension could be granted in circumstances similar to those put forward in the present case.

In that situation, while expressing, of course, as a single judge, no opinion whatever concerning what the ultimate decision ought to be, I think it must be said that the appeal has some prospects of success, and that those prospects, as a discretionary matter, provide ground for granting an order that will prevent the appeal being rendered a futility before it is heard. I think, on any view of s 459F, I have power to extend the time for the purpose of an application under s 459G. I also have power, in the appellate jurisdiction of the Court, to stay an order for the purpose of an appeal, pursuant to rule 17 of Order 52.

I have some doubts whether a stay would be effective in the present case, but what I will do is order that the order made below be stayed pending the hearing of the appeal or further order, and that pursuant to s 459F of the Corporations Law, the period for compliance with the demand be further extended for a period of one month from today's date.  It should be noted that, if the appeal is not able to be dealt with within that time, it will be necessary for a decision to be made as to whether there should or should not be any further extension.  I will direct that the parties take all steps reasonably open to them to prepare the matter for hearing as urgently as possible, and that the matter be brought before the list judge responsible for Full Court matters in Sydney at an early date.

I reserve the costs to be dealt with as directed by the Full Court.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated:            

Counsel for the Applicant:	Mr P S Braham
Solicitor for the Applicant:	Lyon Lawfirm
Solicitor for the Respondent:	Ms C Fierravanti-Wells of Australian Government Solicitor
Date of Hearing:	3 October 1997
Date of Judgment:	3 October 1997