Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2022] NSWSC 104

Supreme Court New South Wales

Medium Neutral Citation: Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2022] NSWSC 104 Hearing dates: 7 and 9 June 2021 Date of orders: 16 February 2022 Decision date: 16 February 2022 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Revoke the decision of the defendant, made 31 August 2018 and confirmed 20 May 2019, not to exercise the discretion under s 79 of the Payroll Tax Act to exclude each of Groups 1 – 5 from membership of a single and discrete group under Division 5 Part 2 of the Payroll Tax Act. 2. Order that the assessment of payroll tax payable by 193 Clarence Hotel Management Ltd for the periods 10 October 2014 to 30 June 2015 and 1 July 2015 to 30 June 2016 be remitted to the defendant and be determined on the basis that Groups 1 to 5 in the defendant's letter of 31 August 2018 do not constitute a "group" under Division 5 Part 2 of the Payroll Tax Act. 3. Order the defendant to pay the plaintiffs' costs. Catchwords: REVENUE LAW –– Payroll Tax Act –– discretion to "de-group" –– review of defendant's decision not to exercise discretion to de-group. Legislation Cited: Corporations Act 2001 (Cth), ss 46, 50, 601ED, 601EB, 601FA - 601FH, 912A, Pt 5C, 7.6, 76, Div 6 Payroll Tax Act 2007 (NSW), ss 72, 79, Div 2, Pt 5 Taxation Administration Act 1996 (NSW), s 97, 100 Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Boston Sales and Marketing Pty Ltd v Chief Commissioner of State Revenue (2014) 99 ATR 323; [2014] NSWCATAD 139 Cessnock Tyres v CCSR [2017] NSWCATAD 368 Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 Chief Commissioner of State Revenue v Seovic Civil Engineering [2014] NSWCATAP 94 Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd (2012) 87 ATR 880; [2012] NSWCA 181 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Commissioner of Stamps v Garrett F Hunter Pty Ltd (1997) 69 SASR 275 Conrad Linings v Chief Commissioner of State Revenue [2014] NSWSC 1020 Conte Mechanical and Electrical Services v Commissioner of State Revenue (2011) 85 ATR 120; [2011] VSC 104 Corrosion Control Engineer (NSW) Pty Ltd v Chief Commissioner [2017] NSWSCATAD 20 Headwear v Chief Commissioner of State Revenue [2015] NSWCATAD 166 Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42; 96 ATR 315 Metricon Qld Pty Ltd v Chief Commissioner of State Revenue (2013) 92 ATR 169; [2013] NSWSC 982 Port Augusta Medical Centre Pty Ltd v Commissioner of State Taxation (2012) 112 SASR 203; [2012] SASCFC 7 Port Augusta Medical Centre v Commissioner of State Taxation (2011) 84 ATR 706; [2011] SASC 31 Regis Mutual Management v Chief Commissioner of State Revenue [2015] NSWCATAD 213 Seovic Engineering Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCA 242 Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue of the State of NSW (2011) 245 CLR 446; [2011] HCA 41 Category: Principal judgment Parties: Elanor Operations Pty Ltd (First Plaintiff) 193 Clarence Hotel Management Pty Ltd (Second Plaintiff) Albany Hotel Management Pty Ltd (Third Plaintiff) Bell City Accommodation Management Pty Ltd (Fourth Plaintiff) Bell City Hotel Management Pty Ltd (Fifth Plaintiff) Byron Bay Hotel Management Pty Ltd (Sixth Plaintiff) Cradle Mountain Lodge Management Pty Ltd (Seventh Plaintiff) Eaglehawk Hotel Management Pty Ltd (Eighth Plaintiff) Featherdale Management Pty Ltd (Ninth Plaintiff) JCF Management Pty Ltd (Tenth Plaintiff) Narrabundah Hotel Management Pty Ltd (Eleventh Plaintiff) Parklands Resort Hotel Management Pty Ltd (Twelfth Plaintiff) Pavilion Wagga Wagga Hotel Management Pty Ltd (Thirteenth Plaintiff) Port Macquarie Hotel Management Pty Ltd (Fourteenth Plaintiff) Tall Trees Hotel Management Pty Ltd (Fifteenth Plaintiff) Wollongong Hotel Management Pty Ltd (Sixteenth Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: C Harris SC with J Stuckey-Clarke (Plaintiffs) S Balafoutis SC with A Byrne and R McMahon (Defendant)