Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21

FEDERAL COURT OF AUSTRALIA

Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21 Citation: Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21

Parties: SUNCHEN PTY LTD v COMMISSIONER OF TAXATION and ADMINISTRATIVE APPEALS TRIBUNAL

File number(s): NSD 1643 of 2008

Judges: PERRAM J

Date of judgment: 29 January 2010

Catchwords: TAXATION – Goods and services tax – input taxed supply – whether property is residential premises used predominantly for residential accommodation – whether determined by objective assessment of premises or by intentions of purchaser – s 40-65 A New Tax System (Goods and Services Tax) Act 1999 (Cth) ADMINISTRATIVE LAW – Judicial review – negative findings of fact and no evidence ground – s 5(1)(h), s 5(3) Administrative Decisions (Judicial Review) Act 1977 (Cth)

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, 5(1)(h), 5(1)(g), 5(2)(a), 5(2)(b), 5(3)(a), 5(3)(b) A New Tax System (Goods and Services Tax) Act 1999 (Cth) s 9.5, 11.5(b), 11.20, 40.35, 40.65(1) Migration Act 1958 (Cth)

Cases cited: Abila v Minister for Immigration and Multicultural Affairs [2001] FCA 1186 referred to Aung v Minister for Immigration and Multicultural Affairs [2000] FCA 1562 applied Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 applied Dunstan v Human Rights and Equal Opportunities Commission (No 2) [2005] FCA 1885 referred to Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352 referred to He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 applied Marana Holdings Pty Ltd v Commissioner of Taxation (2004) 141 FCR 299 considered Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 considered Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to N258/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478 applied Nezovic v Minister for Immigration and Multicultural Affairs (No. 2) (2003) 133 FCR 190 referred to Ordenzia v Minister for Immigration and Multicultural Affairs [2001] FCA 35 applied Toyama Pty Limited v Landmark Building and Developments Pty Ltd (2006) 197 FLR 74 applied Sarancharkh v Minister for Immigration and Multicultural Affairs [2001] FCA 1461 applied Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 referred to SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 referred to Sunchen Pty Ltd v Commissioner of Taxation [2008] AATA 838 affirmed VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 referred to