Pearson v Commissioner of Taxation [2001] FCA 1427

FEDERAL COURT OF AUSTRALIA

Pearson v Commissioner of Taxation [2001] FCA 1427 Trusts – beneficiaries – right to bring action without joining trustee – where trustee in liquidation – proceedings commenced by beneficiary to appeal an objection decision by Commissioner of Taxation under Income Tax Assessment Act 1936 – whether beneficiary has standing to commence derivative action in respect of statutory right of appeal – whether Court has discretion to permit derivative action – grounds for exercising discretion – appropriate steps to be taken by beneficiary to request trustee to commence proceeding Income Tax Assessment Act 1936 (Cth) Taxation Administration Act 1953 (Cth) Dey v Victorian Railways Commissioner (1948 - 1949) 78 CLR 62 cited General Steel Industries Inc v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 cited Cummings v Claremont Petroleum NL (1996) 185 CLR 124 cited Prestige Motors Pty Ltd v Federal Commissioner of Taxation (1993) 48 ALR 497 Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 cited Lidden v Composite Buyers Ltd (1996) 67 FCR 560 cited Ramage v Waclaw (1988) 12 NSWLR 84 Jacobs' Law of Trusts in Australia (5 ed, 1986) JANETTE ANN PEARSON & ORS v COMMISSIONER OF TAXATION & ANOR Q54 OF 2001 TAMBERLIN, MANSFIELD & EMMETT JJ 11 OCTOBER 2001 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q54 OF 2001

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

BETWEEN: JANETTE ANN PEARSON

as a beneficiary of the Jancy Trust

FIRST APPELLANT

JANETTE ANN PEARSON

as the public officer of Jancy Pty Ltd

SECOND APPELLANT

PROPCOMBE PTY LTD (ACN 090 599 607)

as trustee of the Jancy Trust

THIRD APPELLANT