Commissioner of Taxation v Perez [2023] FCA 1221

Federal Court of Australia

Commissioner of Taxation v Perez [2023] FCA 1221 File number: NSD 262 of 2020

Judgment of: KENNETT J

Date of judgment: 13 October 2023

Catchwords: PRACTICE AND PROCEDURE – Strike out and summary judgment – where cross-claim fails to meet most if not all requirements for a pleading and should be struck out – where cross-claim appears to seek compensation for loss of income and assets, reinstatement as a tax agent and declaratory relief – whether claim (or any part of it) should be dismissed on basis that cross-claimant lacks standing as result of being an undischarged bankrupt – whether prospects of success and other circumstances such that claim for reinstatement and declarations should be dismissed BANKRUPTCY AND INSOLVENCY – Whether claim in tort for loss or damage to business remains property of cross-claimant (instead of being divisible amongst creditors) because it is a right to recover damages or compensation "for personal injury or wrong" within meaning of s 116(2)(g) of Bankruptcy Act 1966 (Cth) (Act) BANKRUPTCY AND INSOLVENCY – Whether claim for judicial review of decision to terminate cross-claimant's registration as tax agent constitutes "property that belonged to, or was vested in" cross-claimant (within meaning of s 116(1)(a) of Act) or a right to "take proceedings for exercising … powers in, over or in respect of property" (within meaning of s 116(1)(b) of Act) such that claim is divisible amongst creditors

Legislation: Constitution ss 75, 76, 77 Bankruptcy Act 1966 (Cth) ss 5, 58, 116 Federal Court of Australia Act 1976 (Cth) s 31A Judiciary Act 1903 (Cth) s 39B Tax Agents Services Act 2009 (Cth) ss 20-5, 40-5 Taxation Administration Act 1953 (Cth), Sch 1 s 290-50 Federal Court Rules 2011 (Cth) rr 16.02, 16.21, 26.01