Clarke v Deputy Commissioner of Taxation [2002] FCA 75

FEDERAL COURT OF AUSTRALIA

Clarke v Deputy Commissioner of Taxation [2002] FCA 75 COSTS – application for a private ruling related to the taxation consequences of making contributions to a superannuation fund under a controlling interest superannuation arrangement - whether the applicants should have their costs on a party and party basis or on a solicitor and client basis – purpose and effect of s 226A Income Tax Assessment Act 1936 (Cth) – usual order for costs is on a party and party basis – the Court has discretion to award costs on some higher or other basis where circumstances justify departure from the usual order – this is not a case where the applicant was aware that he had "no chance of success" or where the proceedings were continued for some ulterior motive or in wilful disregard of known facts or clearly established law – matter had been set down for trial prior to the communication by the respondent of its agreement to consent to orders disposing of the principal proceedings WORDS AND PHRASES – "no chance of success"

Administrative Decisions (Judicial Review) Act 1977 (Cth) Taxation Administration Act 1953 (Cth), ss 14ZAF, 14ZAN Income Tax Assessment Act 1936 (Cth), s 226U and/or s 226A Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, cited Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Limited (1991) 100 ALR 568, cited Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, cited Yates Property Corporation Pty Ltd v Boland (No. 2) (1997) 147 ALR 685, cited ROSS DAVID CLARKE and OTHERS v DEPUTY COMMISSIONER OF TAXATION No Q 26 of 2001 SPENDER J BRISBANE 12 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 26 OF 2001

BETWEEN: ROSS DAVID CLARKE