ETO Pty Ltd v Idameneo (No 123) Pty Ltd [2003] NSWSC 1096

Reported Decision : (2004) NSW ConvR 56-086

New South Wales Supreme Court

CITATION : ETO Pty Ltd v Idameneo (No 123) Pty Ltd [2003] NSWSC 1096 HEARING DATE(S) : 21/11/03 JUDGMENT DATE : 21 November 2003 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Specific performance granted. Defendant to provide the plaintiff with a tax invoice reflecting the amount of GST actually payable by the defendant. Plaintiff to pay the defendant's costs to date.

CATCHWORDS : CONVEYANCING [68]- Standard form contract for sale- Construction of cl 13- GST provisions- Whether contract price includes the GST payable by the vendor- Whether GST invoice must represent the amount actually paid in GST- What happens where some of the properties being sold under the contract are a taxable supply and some are not?- "CHOICES" section of contract- Whether warranties or mere information. LEGISLATION CITED : A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 29.70 PARTIES : ETO Pty Limited (P) Idameneo (No 123) Pty Limited (D) FILE NUMBER(S) : SC 5201/03 COUNSEL : D L Warren (P) D R Pritchard (D) SOLICITORS : Robilliard Plowman Herat (P) MasseyBailey (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Friday 21 November 2003

5201/03 - ETO PTY LTD v IDAMENEO (NO 123) PTY LTD JUDGMENT 1 HIS HONOUR: This is a purchaser's suit for specific performance. There is no dispute between the parties that the contract should be completed. Their dispute involves the interpretation of the contract with respect to GST in the circumstances of the contract. Accordingly, at the end of these reasons I will make an order for specific performance, refer the matter to the Master for directions to implement that order, but I will also make a series of declarations as to the issues of principle which divide the parties. 2 I fear there may still be left to the Master at least two serious questions, (1) as to the valuation of part of the property; and (2) as to whether certain properties, which are claimed to be residential, were at the relevant time residential within the meaning of the GST legislation. However, it may be that once the questions of principle have been decided those issues will dissipate. 3 The issues have been set out in the document marked MI #24 and three matters are raised: