Commissioner of Taxation v Sims [2008] NSWCA 298

Reported Decision: 72 NSWLR 716

New South Wales Court of Appeal

CITATION: Commissioner of Taxation v Sims [2008] NSWCA 298

HEARING DATE(S): 6 November 2008

JUDGMENT DATE: 26 November 2008

JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Macfarlan JA at 54

(a) Mr and Mrs Maine indemnify the Commissioner against the costs she is obliged to pay the liquidators pursuant to order 2 made on 16 Novembe 2007; DECISION: (b) Mr and Mrs Maine pay the costs of the appeal of the Commissioner; (c) The Commissioner pay the costs of the appeal of the liquidators; (d) Mr and Mrs Maine have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.

CATCHWORDS: COSTS – order obtained against Commissioner under s588FF of the Corporations Act 2001 – Commissioner sought indemnity under s588FGA(2) of the Act – whether indemnity under s588FGA(2) for "any loss or damages" includes recovery for money paid under a costs order.

Acts Interpretation Act 1901 (Cth) Civil Procedure Act 2005 Corporate Law Reform Bill 1992 (Cth) Corporations Act 2001 (Cth) Corporations Law (Cth) LEGISLATION CITED: Income Tax Assessment Act 1936 Insolvency (Tax Priorities) Legislation Amendment Bill 1993 (Cth) Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth) Suitors' Fund Act 1951 Taxation Administration Act 1953 (Cth) Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 Duncan v Commissioner of Taxation [2006] FCA 885; (2006) 58 ACSR 555 Edington v Clark [1964] 1 QB 367 Gibbons v Deputy Commissioner of Taxation [2003] NSWSC 1126; (2004) 22 ACLC 81 Hillig v Commissioner of Taxation [2000] QSC 403; [2001] 2 Qd R 147 Hornby v Cardwell (1881) 8 QBD 329 CASES CITED: McColl's Wholesale Pty Ltd v State Bank of NSW [1984] 3 NSWLR 365 Ngan v Deputy Commissioner of Taxation (Supreme Court of New South Wales, White J, 22 October 2007, unreported) Noxequin Pty Ltd v Deputy Commissioner of Taxation [2007] NSWSC 87 Sims v Deputy Commissioner of Taxation [2006] NSWSC 305; (2006) 57 ACSR 249 Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation (Supreme Court of New South Wales, Palmer J, 13 November 2001, unreported) Superior Press Pty Ltd (in liq) v Deputy Commissioner of Taxation [2004] VSC 111; (2004) 55 ATR 541 Thomas v Times Book Company Ltd [1966] 1 WLR 911 Woodgate v Commissioner of Taxation [2006] NSWSC 778; (2006) 233 ALR 570