Fiduciary Ltd & Ors v Morningstar Research Pty Ltd & Ors [2004] NSWSC 381

Reported Decision : 60 NSWLR 425

New South Wales Supreme Court

CITATION : Fiduciary Ltd & Ors v Morningstar Research Pty Ltd & Ors [2004] NSWSC 381 HEARING DATE(S) : 30/04/05 JUDGMENT DATE : 11 May 2004

JUDGMENT OF : Gzell J DECISION : Appeal allowed with costs

CATCHWORDS : TAXES AND DUTIES - Goods and Services Tax - Solicitors' bill of costs to United States client for interlocutory proceedings in Australia - Three US resident persons in Australia for the purpose of the proceedings - Whether the supply of services was GST-free as a supply to a non-resident who was not in Australia when the thing supplied was done in terms of item 2 in the table to A New Tax Act (Goods and Services Tax) Act 1999 (Cth), s 38-190(1) - Whether the common law relating to the presence of a non-resident corporation in the jurisdiction for amenability to the courts applies - Whether a non-resident corporation is present in Australia only when it carries on business here through a fixed place of its own or that of an agent of dependent status and for a sufficiently substantial period of time - Appeal on question of law from a review panel under the Legal Profession Act 1987, s 208L that applied Goods and Services Tax Ruling GSTR 2000/31 that a non-resident corporation is in Australia if a representative is in Australia when the Commissioner of Taxation had taken a different view in Draft Goods and Services Tax Ruling 2002/D8 and in Draft Goods and Services Tax Ruling GSTR 2003/D9 Corporations Act 2001 (Cth) Legal Profession Act 1987 A New Tax System (Good and Services Tax) Act 1999 (Cth) LEGISLATION CITED : Goods and Services Tax Ruling GSTR 2000/31 Taxation Administration Act 1953 (Cth), s 37 Draft Goods and Services Tax Ruling GSTR 2002/D8 Draft Goods and Services Tax Ruling GSTR 2003/D9 Income Tax Ruling IT 1 Fiduciary Ltd v Morningstar Research Pty Ltd (2003) 55 NSWLR 1 John Russell & Co Ltd v Cayzer, Irvine & Co Ltd [1916] 2 AC 298 Laurie v Carroll (1957-1958) 98 CLR 310 Dunlop Pneumatic Tyre Co v Actien-Gesellschaft Fur Motor Und Motorfahrzeugbau Vorm Cudell & Co [1902] 1 KB 342 Actiesselskabet Dampskib "Hercules" v Grand Trunk Pacific Railway Co [1912] 1 KB 222 Okura & Co Ltd v Forsbacka Jernverks Aktiebolag [1914] 1 KB 715 Littauer Glove Corp v F W Millington (1920) Ltd (1928) 44 TLR 746 Sfeir & Co v National Insurance Co of New Zealand Ltd [1964] 1 Lloyd's Rep 330 CASES CITED : Vogel v Kohnstamn Ltd [1973] 1 QB 133 Adams v Cape Industries plc [1990] 1 Ch 433 National Commercial Bank v Wimborne (1979) 11 NSWLR 156 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 Anglo Australian Foods Ltd v Credit Suisse (1988) 1 ACSR 69 Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31 Commonwealth of Australia v White [1999] 2 VR 681 Conflict of Laws in Australia, 6th ed, Butterworths, Sydney, 1995 Model Double Taxation Convention on Income and on Capital, OECD, Paris, 1997, art 5 and art 7 and commentaries. Arvid A Skaar, Permanent Establishment: Erosion of a Tax Treaty Principle, Kluwer, Deventer, 1991 Fiduciary Ltd - 1st Plaintiff Graham John Rich - 2nd Plaintiff Morningstar Research Pty Ltd - 1st Defendant PARTIES : Morningstar Inc - 2nd Defendant Joe Mansueto - 3rd Defendant Tao Huang - 4th Defendant Donald James Phillips II - 5th Defendant Bevin Desmond - 6th Defendant FILE NUMBER(S) : SC 13097/03 COUNSEL : Mr Robert Glasson - Plaintiffs Mr Scott Goodman - Defendants SOLICITORS : Nash O'Neill Tomko Lawyers Clayton Utz Lawyers