Commissioner of Taxation v Industrial Equity Ltd [2000] FCA 468

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Industrial Equity Ltd [2000] FCA 468

COMMISSIONER OF TAXATION AND ANOR v INDUSTRIAL EQUITY LIMITED AND ANOR N 1339 of 1999 HILL, HEEREY AND HELY JJ 14 APRIL 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1339 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: COMMISSIONER OF TAXATION

FIRST APPELLANT

J M KILLALY

DEPUTY COMMISSIONER OF TAXATION

SECOND APPELLANT

AND: INDUSTRIAL EQUITY LIMITED

FIRST RESPONDENT

GREGORY KINGSTON COTTAM

SECOND RESPONDENT

JUDGE: HILL, HEEREY AND HELY JJ

DATE OF ORDER: 14 APRIL 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Order 4 of the orders of the Court made on 4 April 2000 be rescinded and the following order be substituted in its place: 4. The respondents pay the appellants' costs at first instance. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1339 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: COMMISSIONER OF TAXATION

FIRST APPELLANT

J M KILLALY

DEPUTY COMMISSIONER OF TAXATION

SECOND APPELLANT

AND: INDUSTRIAL EQUITY LIMITED

FIRST RESPONDENT

GREGORY KINGSTON COTTAM

SECOND RESPONDENT

JUDGE: HILL, HEEREY AND HELY JJ

DATE: 14 APRIL 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT 1 The appellant Commissioner has drawn our attention to the problem that the orders made do not reflect the reasons contained in the judgment. He proposed that the orders which the Court should make are: 1. adding to the order 2 so that it would read – 2. The appeal be allowed and the orders of Gyles J be set aside and in lieu thereof it be ordered that the application be dismissed. 2. substituting the word "applicants" for the word "appellants" in order 4 so that order 4 would read – 4. The applicants pay the respondents' costs at first instance. 2 The respondents submit that there is no slip on the part of the Court and that before making orders there should be further submissions. 3 It is obvious that in the orders which the Court made on giving judgment there has been a slip which it is appropriate to correct. The reasons which the Court gave make this abundantly clear. We see no point in hearing further submissions. The question of how the costs at first instance should be borne was the real issue between the parties. It is a matter upon which the Court has already heard submissions. 4 In these circumstances we propose to correct the error made by deleting the fourth order and substituting: 4. The respondents pay the appellants' costs at first instance. 5 Since writing the above our attention has been drawn to "without prejudice" correspondence, not tendered at the hearing, in which the solicitors for the respondents to the appeal offered to consent to the "dismissal" of the decision at first instance on terms, inter alia, that each party pay its own costs of the proceedings relating to the second notice and of the appeal. That offer was not accepted. Further it was not referred to when the appeal was argued. It is now too late for it to be tendered after judgment was given, particularly where the appeal was argued by the respondents on the basis that the real issue between the parties was whether the first respondent should pay the costs of the proceedings at first instance.