Torrens Aloha Pty Ltd v Citibank NA [1996] FCA 104

CATCHWORDS PRACTICE & PROCEDURE - application for substituted service - respondent bank resident outside jurisdiction, alleged breach of s261 of Income Tax Assessment Act 1936 ("the ITAA"), allegation that money paid by applicant borrower to respondent by way of mistake of law - whether cause of action released by deed - construction of deed of release considered - whether action statute barred - whether cause of action for mistake arose at the time of overpayment or only when the High Court decided David Securities Pty Ltd v Commonwealth Bank of Australia (1991) 175 CLR 353 and recognised that a cause of action existed to recover money paid on a mistake of law. INCOME TAX - interest withholding tax - whether credit agreement constitutes a collateral or supplementary agreement for the purposes of s261 of the ITAA - whether payment by borrower to the Commissioner is required by the ITAA could constitute payment made on a mistake of law. Income Tax Assessment Act 1936 (Cth); s261 Baker v Campbell (1983) 153 CLR 52; discussed. David Securities Pty Ltd v Commonwealth Bank of Australia (1991) 175 CLR 353; applied and discussed. Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; discussed. O'Toole v Charles David Pty Ltd (1990) 171 CLR 232; referred to.

TORRENS ALOHA PTY LTD v CITIBANK NA No NG 759 of 1995 CORAM: HILL J PLACE: SYDNEY DATED: 1 MARCH 1996

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 759 of 1995 ) GENERAL DIVISION ) BETWEEN: TORRENS ALOHA PTY LTD Applicant AND: CITIBANK NA Respondent

CORAM: HILL J PLACE: SYDNEY DATED: 1 MARCH 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

(1) The applicant's motion for substituted service be dismissed. (2) Application dismissed. (3) Applicant to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.