DEPUTY COMMISSIONER OF TAXATION v DICK [2007] NSWCA 190

Reported Decision: 64 ACSR 61(2007) 25 ACLC 1,055 Appeal Outcome: Special leave refused with costs by the High Court - 8 February 2008

New South Wales Court of Appeal

CITATION: DEPUTY COMMISSIONER OF TAXATION v DICK [2007] NSWCA 190

HEARING DATE(S): 28 June 2007

JUDGMENT DATE: 3 August 2007

JUDGMENT OF: Spigelman CJ at 1; Santow JA at 57; Basten JA at 138

DECISION: (1) Appeal allowed. ; (2) The order of Johnston DCJ on 6 September 2006 entering verdict for the defendant be set aside. ; (3) Judgment be entered for the appellant in the sum of $141,259.19. ; (4) The respondent to pay the costs below. ; (5) There be no order for costs in relation to the appeal. ; (6) Leave to cross-appeal disallowed and the claimant to pay the opponent's costs in the cross-appeal.

CATCHWORDS: CORPORATIONS – Corporations Act 2001 (Cth) s1318 – availability of power to relieve director of liability to penalty under s222AOC of Income Tax Assessment Act 1936 (Cth) – legislative history considered – possible relevance of s1317S noted. - STATUTORY CONSTRUCTION - reconciling provisions in two Acts of same legislature – maxim generalia specialibus non derogant considered. - TAXATION – Corporations – Availability of relief under s1318 of the Corporations Act 2001 (Cth) to a director liable under s222AOC of the Income Tax Assessment Act 1936 (Cth) ("ITAA") for a penalty in relation to tax moneys withheld from employees under PAYG and not remitted to the Tax Commissioner – whether relief under s1318 only applicable in the case of a default or breach of duty arising under the Corporations Act – whether Part VI, Divisions 8 and 9 of the ITAA constitute an exhaustive or exclusive legislative scheme or code covering the field – whether the mandate of Part VI, Divisions 8 and 9 is inconsistent with the dispensing power under s1318 of the Corporations Act. - WORDS AND PHRASES – "default", "breach of duty".