Sims v Commissioner of Taxation [2007] NSWSC 1359

Reported Decision : (2007) 25 ACLC 1,829

New South Wales Supreme Court

CITATION : Sims v Commissioner of Taxation [2007] NSWSC 1359 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 8 & 16 November 2007 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 16 November 2007

DECISION : Defendant to pay plaintiffs' costs. First respondent to pay defendant's costs. Second respondent to pay 25 per cent of defendant's costs and be jointly and severally liable with first respondent to that extent.

CATCHWORDS : CORPORATIONS – COSTS – Liquidators of company successful in obtaining order against Commissioner of Taxation under s 588FF of the Corporations Act 2001 (Cth) ("the Act") – Admissions by Commissioner of insolvency of the company and on other issues but no consent to judgment – Commissioner successful against one director and partially successful against another director under s 588FGA(2) of the Act – Order for costs against the Commissioner in favour of liquidators and against directors in favour of the Commissioner – Whether Commissioner's liability under that costs order is "loss or damage resulting from the order" within the meaning of s 588FGA(2) in respect of which directors are liable to indemnify Commissioner – Costs payable by Commissioner because of costs order in proceedings not loss or damage resulting from the order referred to in s 588FGA(2) of the Act

LEGISLATION CITED : Corporations Act 2001 (Cth)

Dean-Willcocks Pty Ltd v Commissioner of Taxation (No 2) (2004) 49 ACSR 325 CASES CITED : Cooper v Commissioner of Taxation (2004) 139 FCR 205 Gibbons v Deputy Commissioner of Taxation [2003] NSWSC 1126