Brayson Motors Pty Ltd (In Liq) v Commissioner of Taxation (Cth) [1985] HCA 20

High Court of Australia Gibbs C.J. Mason, Wilson, Deane and Dawson JJ. Brayson Motors Pty Ltd (In Liq) v Commissioner of Taxation (Cth) [1985] HCA 20

ORDER Answer the questions asked in the case stated as follows:

(1) Is the plaintiff, subject to the provisions of the Sales Tax Regulations referred to in question 2, liable to pay sales tax under the Sales Tax Assessment Acts No. 3 and No. 7 upon a sale value as determined under those Acts as being the amount for which the plaintiff sold each of the cars referred to in this case in retail sales?

Answer: No.

(2) If the answer to question 1 is "yes", is the plaintiff entitled to a refund pursuant to reg. 49 of the Sales Tax Regulations by way of rebate of the whole or some part of the sales tax otherwise payable and if so what proportion?

Answer: Unnecessary to answer.

Order that the costs of and incidental to the stated case be taxed and paid by the defendant to the plaintiff.

Cur. adv. vult.

The Court delivered the following written judgment:—

1985, March 26 Gibbs C.J., Mason, Wilson, Deane and Dawson JJ.

This is a case stated, pursuant to s. 18 of the Judiciary Act 1903 Cth, in proceedings brought in the original jurisdiction of the Court by Brayson Motors Pty. Ltd. ("the plaintiff") against the Commissioner of Taxation. The primary question which it raises is whether the plaintiff was prima facie liable to pay sales tax under the provisions of the Sales Tax Assessment Acts (Nos. 3 and 7) 1930 Cth upon the retail sales of motor vehicles which it made in the ordinary course of a business which it carried on in the Sydney suburb of Rockdale. If, and only if, that question be answered in the affirmative, there will arise the further question whether the plaintiff is, in the particular circumstances of the case, entitled to a refund or rebate of the whole or part of any sales tax pursuant to regs. 48 and 49 of the Sales Tax Regulations ("the Regulations").