Commissioner of State Revenue v ACN 005 057 349 Pty Ltd [2017] HCA 6

HIGH COURT OF AUSTRALIA

KIEFEL, BELL, GAGELER, KEANE AND GORDON JJ

COMMISSIONER OF STATE REVENUE APPELLANT

AND

ACN 005 057 349 PTY LTD RESPONDENT

Commissioner of State Revenue v ACN 005 057 349 Pty Ltd [2017] HCA 6 8 February 2017 M88/2016 & M89/2016

ORDER

Matter No M88/2016

1. Appeal allowed.

2. Set aside pars 2 to 7 of the order of the Court of Appeal of the Supreme Court of Victoria made on 8 December 2015, and in their place order that the appeal to that Court is dismissed with costs.

3. The amended assessments issued by the appellant in compliance with par 3(a) of the order of the Court of Appeal of 8 December 2015 be set aside.

4. The respondent repay to the appellant $1,248,753.38, together with interest pursuant to s 58 of the Supreme Court Act 1986 (Vic) on and from the date of payment of that amount by the appellant to the respondent.

5. The respondent pay the appellant's costs of the appeal to this Court.

Matter No M89/2016

1. Appeal allowed.

2. Set aside pars 2 to 5 of the order of the Court of Appeal of the Supreme Court of Victoria made on 8 December 2015, and in their place order that the appeal to that Court is dismissed with costs.

3. The respondent pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of Victoria

Representation

R M Niall QC, Solicitor-General for the State of Victoria with C G Button and N A Kotros for the appellant (instructed by Solicitor for the Commissioner of State Revenue)

N J Young QC with T M Grace and C van Proctor for the respondent (instructed by Daniel Allison & Associates)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Commissioner of State Revenue v ACN 005 057 349 Pty Ltd

Taxation – Land tax – Where land tax assessments were paid – Where Commissioner did not amend assessments after error detected – Whether Commissioner under duty compellable by mandamus to amend and refund excess land tax – Whether Commissioner's refusal to amend amounted to conscious maladministration – Whether amended assessment had effect that excess tax was never land tax – Whether proceedings were barred under Land Tax Act 1958 (Vic).