Associated Beauty Aids Pty Ltd v Commissioner of Taxation (Cth) [1965] HCA 20

High Court of Australia Barwick C.J. Windeyer and Owen JJ. Associated Beauty Aids Pty Ltd v Commissioner of Taxation (Cth) [1965] HCA 20

ORDER Questions asked in stated case are answered as follows:

(a) Whether on the facts stated the appellant was on 30th June 1954 a company which answered the description in par. (f) of s. 105 (1) of the said Act as being a company which was capable of being controlled by any means whatever by one person or by persons not more than seven in number and was therefore a private company within the meaning of s. 103 of the said Act.

Answer: No.

(b) Whether on the facts stated the appellant was on 30th June 1955 a company which answered the description in par. (f) of s. 105 (1) of the said Act as being a company which was capable of being controlled by any means whatever by one person or by persons not more than seven in number and was therefore a private company within the meaning of s. 103 of the said Act.

Answer: No.

Respondent to pay the costs of the stated case.

Cur. adv. vult.

The following written judgments were delivered:—

April 30 Barwick C.J.

The appellant taxpayer is a proprietary company incorporated under the Companies Act, 1936 N.S.W. and a resident of Australia within the meaning of s. 6 of the Income Tax and Social Services Contribution Assessment Act 1936-1955 Cth (the Act).

On 30th June 1954 the articles of the company contained the following:

1a. The nominal capital of the Company is £10,000 divided into 6,628 ordinary shares of £1 each, 2,400 Cumulative Redeemable Preference Shares of £1 each and 972 "B" Cumulative Preference Shares of £1 each.

(iv) The said new "B" Cumulative Preference Shares shall entitle the holders to receive notice of general meetings and to attend and vote thereat.

(v) The holder of any of the said new "B" Cumulative Preference Shares may, by notice in writing left at the Company's office together with the Certificate for the shares therein referred to, elect to convert the new "B" Cumulative Preference Shares specified in such notice into ordinary shares whereupon such shares shall from the date of delivery of such notice become ordinary shares and shall rank in all respects pari passu with the ordinary shares of the Company and shall cease to have any preference or priority as abovementioned and a new Certificate relating to such converted shares shall be issued to the holder thereof free of charge.