Westley Nominees Pty Ltd v Coles Supermarkets Australia Pty Ltd [2006] FCAFC 115

FEDERAL COURT OF AUSTRALIA

Westley Nominees Pty Ltd v Coles Supermarkets Australia Pty Ltd [2006] FCAFC 115 TAXES & DUTIES – Goods and Services Tax – transitional legislation – existing agreements – lease – where landlord sells reversion – whether incoming landlord makes a supply to existing tenant – where tenant obliged under lease to pay 'rent' and other amounts variously described for enjoyment of premises – whether other amounts part of consideration for the supply – whether separate supplies – where market rent review available only in respect of rent so-called – whether opportunity to conduct market rent review constituted opportunity to conduct general review of consideration for the supply – whether a 'review opportunity' for the purposes of transitional provision – whether supply was GST-free. A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 9-5, 9-10, 9-20, 156-22, 195-1 A New Tax System (Goods and Services Tax Transition) Act 1999 (Cth) ss 6, 12, 13 A New Tax System (Goods and Services Tax) Regulations 1999 (Cth) Reg 40-5.09 ACP Publishing Ltd v Commissioner of Taxation (2005) 142 FCR 533 approved British Airports Authority v Customs and Excise Commissioners [1977] STC 36 referred to British Airways plc v Customs and Excise Commissioners [1990] STC 643 referred to Case M58 (1990) 12 NZTC 2,333 referred to Cellsteel Ltd v Alton House Holdings Ltd (No. 2) [1987] 1 WLR 291 referred to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 cited Commissioner of Stamp Duties v Commonwealth Funds Management Ltd (1995) 38 NSWLR 173 referred to Commissioner of Stamp Duties v J V (Crows Nest) Pty Ltd (1986) 7 NSWLR 529 applied Commissioner of State Revenue v Price Brent Services Pty Ltd [1995] 2 VR 582 referred to Commissioner of State Revenue (Vic) v Royal & Sun Alliance Insurance Australia Ltd (2003) ATC 4998 referred to Customs and Excise Commissioners v British Telecommunications plc [1999] STC 758 referred to DB Rreef Funds Management Ltd v Commissioner of Taxation (2005) 218 ALR 144 approved Kimberley-Clark Ltd v Customs and Excise Commissioners [2004] STC 473 referred to Manchester, Sheffield and Lincolnshire Railway Co v Anderson (1898) 2 Ch 394 referred to Hallstroms Pty Ltd v Federal Commissioner of Taxation [1946] 72 CLR 634 referred to Sterling Guardian Pty Ltd v Commissioner of Taxation (2006) 149 FCR 255 cited WESTLEY NOMINEES PTY LIMITED and PAUL JOEL SPIRA v COLES SUPERMARKETS AUSTRALIA PTY LTD and COMMISSIONER OF TAXATION VID 719 OF 2005 RYAN, HEEREY AND EDMONDS JJ 10 JULY 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA