Coles Supermarkets Pty Ltd v Westley Nominees Pty Ltd [2005] FCA 839

FEDERAL COURT OF AUSTRALIA

Coles Supermarkets Pty Ltd v Westley Nominees Pty Ltd [2005] FCA 839

TAXATION – GST – transitional provisions – lease entered before 8 July 1999 and spanning 1 July 2000 – whether lease provides for a "review opportunity" – whether a taxable supply – consideration for the supply – whether supply – whether the respondents able to invoke the provisions of Div 2 of Pt 3 of A New Tax System (Goods and Services Tax Transition) Act 1999 (Cth) – construction of lease. PRACTICE AND PROCEDURE – whether relief should be refused because the Commissioner of Taxation was not a party – where Commissioner aware of proceedings and gave private ruling that the applicant's argument supported – dispute involved proper construction of the lease and the consideration for the lease – relief might be granted in the absence of the Commissioner. WORDS AND PHRASES – "consideration", "general review", "in connection with" A New Tax System (Goods and Services Tax Transition) Act 1999 (Cth), ss 4, 5, 6, 7, 12, 13, 15A, 15C, 15K, 15L, 15M A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 1-2, 7-1, 7-5, 7-10, 7-15, 9-5, 9-10, 9-15, 9-40, 9-70, 9-75, 11-5, 11-10, 11-20, 11-25, 23-5, 29-70, 156-22, 195-1 Taxation Administration Act 1953 (Cth), s 37 Tax Laws Amendment (Long‑term Non‑reviewable Contracts) Act 2005 (Cth) Property Law Act 1974 (Qld), 55, 117, 118; CSR Ltd v Hornsby Shire Council 2004 ATC 4966; [2004] NSWSC 946,distinguished ACP Publishing Pty Ltd v Commissioner of Taxation [2005] FCAFC 57, referred to Case M58 (1990) 12 NZTC 2333, referred to Orti‑Tullo v Sadek 2001 ATC 4688; [2001] NSWSC 855, referred to DB Rreef Funds Management Ltd v Commissioner of Taxation [2005] FCA 509, considered Commissioner of State Revenue v Price Brent Services Pty Ltd [1995] 2 VR 582, considered Murray Goulburn Co‑operative Co Ltd v Cobram Laundry Service Pty Ltd [2001] VSCA 57, followed The Council of the Upper Hunter County District v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429, cited Pebruk Nominees Pty Ltd v Woolworths (Victoria) Pty Ltd [2003] TASSC 94, cited O'Grady v The Northern Queensland Company Limited (1990) 169 CLR 356, referred to PMT Partners Pty Ltd v Australian National Parks and Wildlife Service (1995) 184 CLR 301, referred to Federal Commissioner of Taxation v Scully (2000) 201 CLR 148, referred to The Workers' Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642, referred to G Knowles & Associates Pty Ltd v Federal Commissioner of Taxation 2000 96 FCR 402, referred to Harris v Commissioner of Taxation [2002] FCAFC 226, referred to Smith v Federal Commissioner of Taxation (1987) 164, referred to News Limited v Australian Rugby Football League Ltd (1996) 64 FCR 410, referred to