NSW Caselaw
New South Wales Supreme Court
CITATION : Ashton v Monteleone [2010] NSWSC 258
HEARING DATE(S) : 11 March 2010
JUDGMENT DATE : 8 April 2010
JURISDICTION : Equity
JUDGMENT OF : Gzell J
DECISION : Contract for sale to be rectified by addition of "+GST" to price. Purchasers' claim to payment of 1/11th of price to be dismissed. Vendor to be ordered to apply for a private indirect tax ruling from the Commissioner of Taxation.
CATCHWORDS : EQUITY - Equitable Doctrines and Presumptions - Rectification - whether common intention that purchase price of land was "+ GST" - whether price in contract for sale should be rectified by the addition of "+ GST" - calculation of GST where sale partly a taxable supply and partly input-taxed - whether vendor obliged to pay purchaser 1/11th of price on completion
A New Tax System (Goods and Services Tax) Act 1999 (Cth) LEGISLATION CITED : Civil Procedure Act 2005 Taxation Administration Act 1953 (Cth)
CATEGORY : Principal judgment
Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329
Simonetta Ashton (First Plaintiff) Robertino Serianni (Second Plaintiff) PARTIES : Joseph Monteleone (First Defendant) Always Fresh Fruit and Vegetable Merchants Pty Limited (Second Defendant) Giampiero Serianni (Third Defendant)
FILE NUMBER(S) : SC 2009/291033
COUNSEL : R Newlinds SC with P Newton (Plaintiffs) A Street SC with J Emmett (First and Second Defendant)
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