Zeroz Pty Ltd v Deputy Commissioner of Taxation

[1997] FCA 245

CATCHWORDS

COSTS  -  whether proposed order for costs in minute of orders should be varied.

ZEROZ PTY LTD v DEPUTY COMMISSIONER OF TAXATION
WAG 131 of 1996

LEE, HILL & RD NICHOLSON JJ
PERTH
11 APRIL 1997

IN THE FEDERAL COURT OF AUSTRALIA        )
  )
WESTERN AUSTRALIA DISTRICT REGISTRY  )     No WAG 131 of 1996
  )
GENERAL DIVISION  )

ON APPEAL FROM A SINGLE JUDGE
             OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:ZEROZ PTY LTD

Appellant

AND:DEPUTY COMMISSIONER OF TAXATION

Respondent

CORAM:   LEE, HILL & NICHOLSON JJ
PLACE:   PERTH
DATED:   11 APRIL 1997

MINUTE OF ORDER

THE COURT ORDERS THAT:

The stay of entry of item 3 of the minute of orders of 4 April 1997 be removed.

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  )     No WAG 131 of 1996
  )
GENERAL DIVISION  )

ON APPEAL FROM A SINGLE JUDGE
             OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:ZEROZ PTY LTD

Appellant

AND:DEPUTY COMMISSIONER OF TAXATION

Respondent

CORAM:   LEE, HILL & NICHOLSON JJ
PLACE:   PERTH
DATED:   11 APRIL 1997

REASONS FOR JUDGMENT

THE COURT:

The reasons of the Court in this matter were handed down on the 4th instant.  At that time, pursuant to a minute of orders accompanying the reasons, orders were made that the appeal be allowed and the application remitted to the Administrative Appeals Tribunal for rehearing according to law.

Item 3 of the minute of orders proposed that the respondent pay the appellant's costs of the appeal and of the hearing before the judge at first instance.  On the application of the respondent the making of that order was stayed for 7 days subject to the respondent, by the 7th instant, filing submissions in support of its contention that the proposed order should be varied.

The respondent duly filed its submissions and an affidavit. The appellant responded by filing submissions and an affidavit which put in issue some matters raised in the respondent's affidavit.

The Court has perused and considered the respective submissions and is not persuaded that the order proposed in item 3 of the minutes of order attached to the reasons of the Court should be varied.  Furthermore, in so far as the respondent's submissions have raised matters of fact put in contention by an opposing affidavit, it would be inappropriate for the Court, at this stage, to entertain an application based on that contested material to vary what would otherwise be the usual order for costs.

Accordingly, the stay imposed on the entry of the order will be removed.

I certify that the
preceding two pages
are a true copy of the Reasons
for Judgment herein of their Honours
Justices Lee, Hill and RD Nicholson.

Associate:

Date: 

Counsel and Solicitors     L Roberts-Smith QC

for Appellant:                  instructed by Halperin Fleming Meertens

Counsel and Solicitors     T J Carey instructed by

for Respondent:            the Australian Government Solicitor

Date of Hearing:           4 April 1997

Date Judgment Delivered:        11 April 1997