Paliflex Pty Ltd & Anor v Chief Commissioner of State Revenue [2004] NSWSC 1105

New South Wales Supreme Court

CITATION : Paliflex Pty Ltd & Anor v Chief Commissioner of State Revenue [2004] NSWSC 1105 HEARING DATE(S) : 11/11/04 JUDGMENT DATE : 19 November 2004

JUDGMENT OF : Gzell J DECISION : Order that the proceedings be summarily dismissed under the Supreme Court Rules 1970, Pt 13 r 5. Summary judgment for the Commissioner on his cross claim for the assessed tax plus interest under Pt 13 r 2.

CATCHWORDS : ESTOPPEL - General Principles - Land tax assessments for 1999 and 2000 years - High Court concluded Land Tax Management Act 1956 did not levy tax on the Commonwealth and it was unnecessary to consider the constitutional validity of the Commonwealth Places (Mirror Taxes) Act 1998 (Cth), s 6(2) that purported to uphold State taxing laws that levied tax in relation to Commonwealth places contrary to the Constitution (Cth), s 52(i) - Later proceedings challenging land tax assessments for 1999 to 2004 years on basis the land was a Commonwealth place and the Commonwealth Places (Mirror Taxes) Act 1998 (Cth), s 6(2) did not apply to it and on the basis that assessments were raised against the wrong person because the registered proprietor had transferred the land to the second plaintiff who had entered into possession and the Land Tax Management Act 1956, s 26 deemed him to be the owner - Whether res judicata estoppel applied to the 1999 and 2000 years - Whether issue estoppel applied to the constitutional question for the 2001 to 2002 years - Whether Anshun estoppel applied to the transfer issue Land Tax Management Act 1956 Commonwealth Places (Mirror Taxes) Act 1998 (Cth) Commonwealth Places (Mirror Taxes Administration) Act 1998 LEGISLATION CITED : Land Tax Act 1956 Supreme Court Rules 1970 Real Property Act 1900 Constitution (Cth) Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 Paliflex Pty Ltd v Chief Commissioner of Sate Revenue (NSW) 2002 ATC 4124 Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) 2002 ATC 5015 Paliflex Pty Ltd v Chief Commissioner of State Revenue (2003) 78 ALJR 87 Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 Permanent Trustee Australia Ltd v Commissioner of State Revenue [2004] HCA 53 Thoday v Thoday [1964] P 181 at 198 Egri v DRG Australia Ltd (1988) 19 NSWLR 600 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 CASES CITED : Henderson v Henderson (1843) 3 Hare 100 at 115 (67 ER 313 at 319) Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 Ruddock v Taylor (2003) 58 NSWLR 269 at 285 Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62 at 91 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 Penthouse Publications Ltd v McWilliam, unreported, NSWCA, 14 March 1991 Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628 Commissioner of Land Tax (NSW) v Opalfield Pty Ltd 94 ATC 4171 Chief Commissioner of Land Tax v Macary Manufacturing Pty Ltd (1999) 48 NSWLR 299 Chief Commissioner of Stamp duties v Paliflex Pty Ltd (1999) 47 NSWLR 382 Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, Buttterworths, London, 1996 Paliflex Pty Ltd - 1st Plaintiff/ Cross Defendant PARTIES : Barry Francis Anstee 2nd Plaintiff Chief Commissioner of State Revenue - Defendant/Cross Claimant FILE NUMBER(S) : SC 3585/02 COUNSEL : Mr I Mescher - Defendant/Cross Claimant Mr Anstee - In Person SOLICITORS : I V Knight Crown Solicitor