Taylor v Deputy Commissioner of Taxation (Cth) [1969] HCA 25

High Court of Australia Barwick C.J. Taylor and Menzies JJ. Taylor v Deputy Commissioner of Taxation (Cth) [1969] HCA 25

ORDER Appeal allowed with costs and cross appeal dismissed with costs. Judgment of the Supreme Court discharged and in lieu thereof order that judgment be entered for the plaintiff for $106,988.50 to be levied upon the shares described in the schedule to the judgment of the Supreme Court and in so far as the said shares are insufficient to discharge the judgment then levy to be made on any other assets of the deceased which shall hereafter come to the hands of the defendants. Respondent to pay the appellants' costs of the trial.

Cur. adv. vult.

The Court delivered the following written judgment:—

June 6 Barwick C.J., Taylor and Menzies JJ.

The appellants are, respectively, the executor and executrix of Ernest Taylor who died on 6th December 1954. Some seven years later, on 24th March 1961, they were assessed, by amended assessments pursuant to s. 216 of the Income Tax and Social Services Contribution Assessment Act 1936-1961 Cth, to income tax and social services contributions and additional tax in respect of the deceased's income during the years between 1st July 1944 and 30th June 1954 and for the balance of the period from 1st July 1954 to the time of his death. Notice of the assessments was given to the appellants (whom we shall call the executors) on or about 18th April 1961. No part of the amount of tax assessed having been paid, the respondent brought an action against the executors in their representative capacity to recover the amount—$106,988.50. In the result judgment was entered for the respondent in that sum, together with costs, "to be levied of the assets which were of the said Ernest Taylor at the time of his death in the hands of the defendants his executor and executrix as aforesaid to be administered of which the only assets they have in their hands are the property known as "Kellys" and certain shares all of which are more particularly described in the schedule hereto" and, in so far as those assets should be insufficient to discharge the judgment, to be levied upon any future assets coming into their hands and, as to costs, "in so far as the assets of the said Ernest Taylor are insufficient thereto to be levied of the assets of the said defendants". We observe that the judgment contained what was, in effect, a declaration that the specified assets were subject to a first charge in favour of the respondent, apparently, pursuant to s. 216 (d). But we mention this merely to point out that the case was not concerned with the question whether a charge had attached to any property of the deceased; the action was one brought against executors for the recovery of a debt and the test of their liability was not whether a charge had attached. It is, of course, possible that cases will arise where a charge under par. (d) will attach notwithstanding that liability cannot be imposed upon the trustees and where the trustees will be liable even though no charge has arisen. However in this case the form of the judgment seems to have been the subject of some measure of agreement between the parties after they had been informed of the substance of his Honour's decision, and, since one of the appellants was not only an executrix but also the devisee of "Kellys", we need say no more.