Advanced Prosthetic Centre P/L v. Appliance & Limb Centre (Int) P/L [2002] NSWSC 515

New South Wales Supreme Court

CITATION : Advanced Prosthetic Centre P/L v. Appliance & Limb Centre (Int) P/L [2002] NSWSC 515 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 5019/2001 HEARING DATE(S) : 07/05/2002 JUDGMENT DATE : 13 June 2002

Advanced Prosthetic Centre Pty Ltd, David Thomas Howells and Erwin Muenger - Plaintiffs PARTIES : Appliance & Limb Centre (International) P/L - First Defendant Richard Anthony Watson - Second Defendant JUDGMENT OF : Bryson J at 1

COUNSEL : D.E. Grieve QC - Plaintiffs R. Hamilton - Defendants SOLICITORS : Haywards Solicitors - Plaintiffs Watson & Watson - Defendants CATCHWORDS : CONTRACT - construction of contractual provision - Deed of Release of litigation provided for payments by former employer ALC to APC parties, which meant APC Company and two principals who were former employees of ALC - cl.3 authorised deduction of amount of liability "in the event that ALC is liable to make any payment under the Income Tax Assessment Act in respect of any money payable under this clause" - ALC claimed to make deductions on basis that settlement moneys were Eligible Termination Payments as defined in s.27A(1) of ITA Act 1936 - on the facts, the payments were not ETP as defined. - INCOME TAX - Eligible Termination Payment - application of definition to the facts. Industrial Relations Act 1996 LEGISLATION CITED : Income Tax Assessment Act 1936 Taxation Administration Act 1953 Income Tax Assessment Act 1997 McLaurin v. Federal Commissioner of Taxation (1961) 104 CLR 381 Allsop v. Federal Commissioner of Taxation (1965) 113 CLR 341 Allied Mills Industries Pty Ltd v. Federal Commissioner of Taxation (1989) 20 FCR 288 CASES CITED : Whitaker v. Commissioner of Taxation (1996) 63 FCR 1 Reseck v. Federal Commissioner of Taxation (1975) 133 CLR 45 McIntosh v. Federal Commissioner of Taxation (1979) 79 ATC 4325 Freeman & Ors v. Federal Commissioner of Taxation (1983) 83 ATC 4456 Haggarty & Ors v. Federal Commissioner of Taxation (1989) 89 ATC 4485 DECISION : Withholding was unauthorised - judgment for amount withheld - see [66]