TAB Ltd v Commissioner of Taxation (No 2) [2005] NSWSC 639

New South Wales Supreme Court

CITATION : TAB Ltd v Commissioner of Taxation (No 2) [2005] NSWSC 639

HEARING DATE(S) : 21/06/05

JUDGMENT DATE : 21 June 2005

JUDGMENT OF : Gzell J

DECISION : Order defendant to pay plaintiff's costs of the proceedings save for any costs incurred by the prolongation of the hearing of the case beyond 11 April 2005

CATCHWORDS : PROCEDURE - Costs - Whether notice to admit essential facts after affidavit proving the facts filed and served enlivens entitlement to indemnity costs of proof under Supreme Court Rules 1970, Pt 52A r 19 - Whether refusal to agree upon statement of facts warrants order for indemnity costs - Whether costs of prolongation of hearing due to handing up submissions additional to those directed to be swapped and raising new arguments should be borne by plaintiff

Totalizator Act 1997 LEGISLATION CITED : A New Tax System (Goods and Services Tax) Act 1999 Supreme Court Rules 1970

CASES CITED : Oshlack v Richmond River Council (1998) 193 CLR 72

TAB Ltd - Plaintiff PARTIES : Commissioner of Taxation - Defendant

FILE NUMBER(S) : SC 4109/04

Mr M Robertson - Plaintiff COUNSEL : Mr S W Gibb SC - Defendant

Ernest & Young Law SOLICITORS : Australian Government Solicitor

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

TUESDAY 21 JUNE 2005

4109/04 TAB LTD v COMISSIONER OF TAXATION (No 2) EX TEMPORE JUDGMENT 1 I have before me an application with respect to the appropriate form of orders to be made consequent upon my publication of my reasons in this matter. TAB Ltd seeks a declaration in terms that it is not liable to pay GST in relation to amounts to which the plaintiff was entitled pursuant to s 75(1)(a) and s 75(2)(a) of the Totalizator Act 1997 in that for purposes of s 126-(10)-(1) of A New Tax System (Goods and Services Tax) Act 1999, total amounts wagered were to be determined in accordance with the proposed declaration and total monetary prizes were to be calculated in accordance with the proposed declaration. 2 The Commissioner tendered draft short minutes of orders in terms that the declaration state that in determining, for purposes of Div 126 of A New Tax System (Goods and Services Tax) Act 1999, the plaintiff's net amount for a tax period, the plaintiff is entitled in calculating its global GST amount to exclude from total amounts wagered any bets the subject of an event occurring in the tax period giving rise to an obligation to refund and to include in total monetary prizes any dividend declared in the tax period. 3 There was other verbiage in the Commissioner's proposed declaration but I have summarised its material structure. 4 It seems to me that the form of declaration proposed by the Commissioner is more precise and encapsulates more precisely my reasons for judgment than does the proposal of the plaintiff. The plaintiff sought the declaration in the more general form in case the Commissioner sought to raise against it a different ground for liability to GST. I am not prepared to make a declaration in general form to avoid that prospect. The only basis upon which a liability to GST was agitated before the Court in these proceedings was in relation to Div 126 of A New Tax System (Goods and Services Tax) Act 1999. I propose, therefore, to make the declaration suggested by the Commissioner. 5 The plaintiff seeks an order that the defendant pay the plaintiff's costs of the proceedings on the usual basis except for costs incurred by the plaintiff in proving unadmitted facts, the subject of the plaintiff's notice to admit facts, those costs to be paid by the defendant on an indemnity basis. 6 On 17 March 2005, a notice to admit facts was served on the Commissioner pursuant to the Supreme Court Rules 1970, Pt 18 r 2 and r 5. A notice disputing facts under Pt 18 r 2(2) was served on 1 April 2005. The facts sought to be admitted were proved in an affidavit of Warwick Smith sworn on 7 October 2004. Part 52A r 19 is in the following terms: "(1) Where a party to any proceedings (in this rule called the disputing party ) serves a notice disputing a fact under Part 18 rule 2(2) and afterwards that fact is: (a) proved in the proceedings, or (b) admitted for the purpose of the proceedings by the disputing party, unless the Court otherwise orders, the disputing party shall, after the conclusion of the proceedings, pay the costs of the party upon whom the notice is served, assessed on an indemnity basis, occasioned by: (c) proof of the fact, or (d) preparation for the purpose of proving the fact, as the case may be. (2) An entitlement to costs under this rule shall not be affected by any order as to costs unless that order refers to the notice by the disputing party giving rise to the entitlement. (3) This rule has effect notwithstanding rules 11A, 18, 21, 22, 23, 28, 29, and 30(4) and (5)."