Derrin Brothers Properties Limited v Deputy Commissioner of Taxation [2013] FCA 571

FEDERAL COURT OF AUSTRALIA

Derrin Brothers Properties Limited v Deputy Commissioner of Taxation [2013] FCA 571 Citation: Derrin Brothers Properties Limited v Deputy Commissioner of Taxation [2013] FCA 571

Parties: DERRIN BROTHERS PROPERTIES LIMITED v DEPUTY COMMISSIONER OF TAXATION

File numbers: VID 887 of 2010 NSD 963 of 2013

Judge: KATZMANN J

Date of judgment: 11 June 2013

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment – application for stay pending determination of application for leave to appeal or appeal – recovery of tax – challenge to decision of primary judge to refuse to stay the execution of a tax judgment while Part IVC appeal pending – whether sufficient prospects of success in appeal against the refusal of the stay to justify reconsideration by a Full Court – whether primary judge erred in holding that he could not determine the merits of the pending Part IVC appeal without speculating – whether there was evidence to support the finding – whether evidence called by the Commissioner should have been admitted and, if so, whether it was sufficient to support the decision – whether primary judge applied the wrong test for considering the merits – whether substantial prejudice would result if leave were refused

Legislation: Evidence Act 1995 (Cth) s 76 Federal Court of Australia Act 1976 (Cth) ss 23, 31A Federal Court Rules 2011 r 36.08 Income Tax Assessment Act 1997 (Cth) Div 855 Taxation Administration Act 1953 Pt IVC

Cases cited: CSR Limited v Rabenalt (unreported, Supreme Court of Victoria, 18 December 1987) Cywinski v Deputy Commissioner of Taxation [1990] VR 193 Décor Corp Pty Limited v Dart Industries Inc (1991) 33 FCR 397 Deputy Commissioner of Taxation (Vic) v Cywinski (1988) 19 ATR 1510 Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 Deputy Commissioner of Taxation v Chemical Trustee Ltd (2010) 81 ATR 237; [2010] FCA 1297 Deputy Commissioner of Taxation v Hua Wang Bank Berhad (No 3) [2012] FCA 594 Esquire Nominees Limited as Trustee of Manolas Trust v Federal Commissioner of Taxation (Cth) (1973) 129 CLR 177 House v The King (1936) 55 CLR 499 Southgate Investment Funds Limited v Deputy Commissioner of Taxation [2013] FCAFC 10 Spencer v The Commonwealth (2010) 241 CLR 118 Trade World Enterprises Pty Ltd v Deputy Commissioner of Taxation (2006) 64 ATR 316 Trade World Enterprises Pty Ltd v Deputy Commissioner of Taxation (2006) 64 ATR 316; [2006] VSCA 191 Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137