CEO OF CUSTOMS v TONY LONGO PTY LTD [1999] NSWSC 1240

New South Wales Supreme Court CITATION : CEO OF CUSTOMS v TONY LONGO PTY LTD [1999] NSWSC 1240 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 11069/98 HEARING DATE(S) : 15/06/99, 17/06/99, 16/07/99, 16/09/99, 06/12/99 JUDGMENT DATE : 6 December 1999

PARTIES : Chief Executive Officer of Customs (Plaintiff-Respondent) Tony Longo Pty Limited t/as Aquila Shoes (Defendant-Applicant)) JUDGMENT OF : Adams J at 1

COUNSEL : Mr A Gelbart (Plaintiff) Mr S Gageler with Mr J R Clarke (Defendant) SOLICITORS : Australian Government Solicitor (Lyn Brady) (Plaintiff) KPMG Legal (Defendant) CATCHWORDS : Customs Act 1901, ss30, 68, 132, 132A, 153 - Customs Tariff Act 1987, s21 - imported goods released for home consumption without entry - when obligation to pay duty arose - whether calculation of duty possible - whether debt created. Customs Act 1901 ACTS CITED : Customs Tariff Act 1987 Customs and Excise Legislation Amendment Act 1992 CASES CITED : In Re Gregg Prechelt [1999] QSC 36 (3 March 1999) Carter Holt Harvey Manufacturing Group Pty Ltd v Comptroller-General of Customs (1996) 128 FLR 96 DECISION : Application upheld; Statement of Claim struck out.

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J

MONDAY 6 DECEMBER 1999 11069/98 CHIEF EXECUTIVE OFFICER OF CUSTOMS v TONY LONGO PTY LIMITED JUDGMENT 1 HIS HONOUR: Following an order that the proceedings between the parties continue on pleadings and, inter alia, that the plaintiff should file and serve a Statement of Claim, a Statement of Claim was duly filed on 12 February 1999. It is sufficient for present purposes to set out the allegations in paragraphs 1 to 7- 1. The plaintiff is the Chief Executive Officer of Customs. 1a The Defendant is a company duly incorporated under the laws of Australia and is liable to be sued in and by its corporate name and style. 2. In the period 1987 to 1990 inclusive the Defendant traded under the name Aquila Shoes. Goods # 1 3. In or about July, 1987 Goods # 1 were: 3.1 imported into Australia 3.2 imported into Australia for home consumption. Particulars of Goods # 1 672 pairs of shoes, supplied by Calcado Raly, Portugal: Particulars of Importation Airway Bill No: MAWB 057 376 36756, dated: 28 July, 1987. 4. At the time of importation the Defendant was: 4.1 the owner of Goods # 1, 4.2 importer of Goods # 1, 4.3 beneficially interested in Goods # 1, 5. Goods # 1 were not entered as required under Part IV of the Customs Act 1901 (C'wth). 6. Amount of Customs duty payable in relation to Goods # 1 is $9116.86. 7. No Customs duty has been paid in respect of Goods # 1. 2 By Notice of Motion the defendant seeks to have the Statement of Claim struck out pursuant to Part 15 rule 26 of the Rules of the Court as disclosing no reasonable cause of action. 3 The crucial provisions relevant to the cause of action sought to be established by the plaintiff are contained in the Customs Act 1901 (the Act) and the Customs Tariff Act 1987 (the Tariff Act). These Acts must be read together. Indeed, the Act is, by s4 of the Tariff Act, to be incorporated in the latter Act "and shall be read as one" with it. 4 Section 21 of the Tariff Act provides - "(1) Duties of Customs are imposed, in accordance with this Act, on: