COMMISSIONER OF TAXATION v BROOK and ORS [1995] NSWCA 87

COMMISSIONER OF TAXATION v BROOK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 8 September 1994, 2 February 1995

[1995] NSWCA 87

Sheller JA INTRODUCTION

Ihave had the benefit of reading in draft the judgment of Cole JA. His Honour has set out the facts and the terms of s221P(1) of the Income Tax Assessment Act 1936. The amendments to the section by the Insolvency (Tax Priorities) Legislation Amendment Act 1993 do not apply in this case.

On 10 January 1991, pursuant to a deed of charge dated 12 June 1990, the respondent, Mr Brook, was re-appointed receiver of all of the undertaking and assets of Hanibridge Pty Ltd with all the powers which might be conferred upon a receiver appointed under the charge. These included power to take possession of, collect and get in the whole or any part of the mortgaged premises, to sell all or any part of the mortgaged premises and to apply all moneys received under or by virtue of the deed of charge

"(a) in payment of all costs charges and expenses incurred in or incidental to the exercise or performance or attempted exercise or performance of any of the powers or authorities hereby conferred or otherwise in relation to these presents;

(b) in payment of such other properly incurred outgoings in connection with the receivership or the enforcement of the security as such receiver or the mortgagee shall think fit to pay;

(c) in payment to the receiver of his fixed remuneration (not exceeding any amount or commission of five per cent of the gross amount of all moneys received by him); and

(d) in payment to the mortgagee of the moneys hereby secured and the surplus (if any) shall belong to the mortgagor but such surplus shall not carry interest and the receiver or the mortgagee shall be at liberty to pay the same to the credit of an account in the name of the mortgagor concerned in the books of any bank carrying on business within the Commonwealth of Australia and shall thereupon be under no further liability in respect thereof."