Denlay v Commissioner of Taxation (No 2) [2013] FCA 358

FEDERAL COURT OF AUSTRALIA

Denlay v Commissioner of Taxation (No 2) [2013] FCA 358 Citation: Denlay v Commissioner of Taxation (No 2) [2013] FCA 358

Parties: KEVIN VINCENT DENLAY v COMMISSIONER OF TAXATION HELENA MIRJA DENLAY v COMMISSIONER OF TAXATION

File number(s): QUD 114 of 2012 QUD 115 of 2012

Judge: LOGAN J

Date of judgment: 10 April 2013

Catchwords: COSTS – application for indemnity costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) – where earlier judgment delivered quashing the decision of the respondent to issue a garnishee notice to each of the applicants under s 260-5 of Sch 1 of the Taxation Administration Act 1953 (Cth) – application of judicial discretion to award indemnity costs – whether a sufficient special or unusual feature in the case justifying the awarding of indemnity costs – where respondent had issued a s 260-5 notices in 'abject ignorance' of the basis of a stay of enforcement of judgment of the Supreme Court of Queensland in respect of assessment debts, and the provenance of that order – where notices were issued by the respondent without regard to the merits of the part heard taxation appeals in respect of same assessments – where the applicants' solicitor had written to the respondent after the decision to issue the notices and before instituting proceedings highlighting the existence of the stay order and inviting reconsideration Held: costs to be paid on an indemnity basis

Legislation: Constitution (Cth) Ch III Administrative Decisions (Judicial Review) Act 1977 (Cth) Bankruptcy Act 1966 (Cth) Federal Court of Australia Act 1976 (Cth) s 43 Taxation Administration Act 1953 (Cth) s 260-5 Transfer Land Act 1958 (Vic) s 42