Walsh v K.C. & W.L. Brain Pty Limited (No. 6) [2024] NSWDC 339

District Court New South Wales

Medium Neutral Citation: Walsh v K.C. & W.L. Brain Pty Limited (No. 6) [2024] NSWDC 339 Hearing dates: 28 May 2024 Date of orders: 28 May 2024 Decision date: 28 May 2024 Jurisdiction: Civil Before: Neilson DCJ Decision: GST must be excluded from the assessment of the damages in this case. Catchwords: Both parties were in trade or business as farmers and were entitled to input credits. Legislation Cited: Nil. Cases Cited: Gagner Pty Ltd Trading as Indochine Café v Canturi Corporation Pty Ltd [2009] NSWCA 413; (2009) 262 ALR 691 Texts Cited: Nil. Category: Principal judgment Parties: Plaintiff – Alan David Walsh Defendant – KC & WL Brain Pty Ltd Representation: Counsel: Plaintiff – Mr Gunning, M. Defendant – Mr O'Connor, J.

Solicitors: Plaintiff – Rural Law Defendant – Walsh & Blair Solicitors File Number(s): 2020/00107856 Publication restriction: Nil.

Judgment

Defendant's Claim for GST 1. HIS HONOUR: A claim has been made by the cross-claimant/defendant that GST should be payable on the sums awarded by way of quantum meruit and/or the cross-claim. However, counsel referred me to Gagner Pty Ltd Trading as Indochine Café v Canturi Corporation Pty Ltd [2009] NSWCA 413; (2009) 262 ALR 691, where the headnote succinctly states this: "Given that the respondent was at relevant times a trading corporation engaged in business activity and registered for GST purposes under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) such that it must pay GST on taxable supplies on merchandise sold to customers, the respondent would be entitled to an input tax credit for those creditable acquisitions it paid for in connection with the refurbishment of the premises, which would either reduce the GST tax payable by the respondent or entitle it to a refund, such that the GST amount should be excluded from the amount of damages recoverable." 1. The judgment is one of Campbell JA, with whom Macfarlan JA and Sackville JA concurred. As both the plaintiff and the defendant were in the course of trade or business and would incur GST but be entitled to an input credit for that, in my view GST must be excluded from the assessment of the damages in this case.