New South Wales Supreme Court CITATION : Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1424 HEARING DATE(S) : 08/12/10 JUDGMENT DATE : 8 December 2010 JURISDICTION : Equity Division Corporations List JUDGMENT OF : Barrett J EX TEMPORE JUDGMENT DATE : 8 December 2010 DECISION : Notice of motion dismissed with costs. CATCHWORDS : PROCEDURE - application for stay or similar order pending appeal - no grounds of appeal articulated - order refused LEGISLATION CITED : Corporations Act 2001 (Cth), ss 459F(2)(a)(i), 459G CATEGORY : Principal judgment CASES CITED : Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473 Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409 Mossimo Systems International Pty Ltd Horizon Developments Sydney Pty Ltd Precise Constructions Pty Ltd Integrated Constructions Pty Ltd PARTIES : Caporale Buiilders Corporation Sydney Pty Ltd Elite Project Management Pty Ltd Caporale Group Pty Ltd Matrix Holdings Pty Ltd Caporale Builders Pty Ltd - Plaintiffs Deputy Commissioner of Taxation - Defendant FILE NUMBER(S) : SC 2010/109215 COUNSEL : Ms Rosa Caporale - authorised officer of Plaintiffs Mr D M Jay - Defendant SOLICITORS : Rosa Caporale in person Legal Services Branch, Australian Taxation Office - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST BARRETT J WEDNESDAY 8 DECEMBER 2010 2010/109215 MOSSIMO SYSTEMS INTERNATIONAL PTY LIMITED & ORS v DEPUTY COMMISSIONER OF TAXATION JUDGMENT 1 Ms Caporale has appeared to speak this morning for the seven plaintiffs whose application was disposed by the order of dismissal made by me on 2 December 2010 (Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409). 2 Ostensibly all nine plaintiffs but, in reality, only the seven plaintiffs still in existence filed yesterday a notice of motion seeking a stay "on the enforcement of any proceedings by the defendant in relation to the judge's decision made 2 December 2010 until the appeal is heard and determined". 3 The effect of any such stay in relation to an order of dismissal is problematic. Counsel for the Deputy Commissioner indicated that perhaps the application should be approached as if it were an application for an extension of time under s 459F(2)(a)(i). An alternative characterisation - although one that raises problems in the absence of any proffering of an undertaking as to damages – might be that the application is, in substance, an application for an injunction restraining the Deputy Commissioner from acting upon non-compliance with each statutory demand. 4 Whichever way one addresses the application, the matter at the heart of it appears to be an intention to appeal from the decision of 2 December 2010. And whether the application be seen as an application for a stay, an application under s 459F(2)(a)(i) or an application for an injunction, the same threshold question arises, namely, as to the grounds on which any such appeal would be brought and whether the grounds are such as to indicate some form of arguable case on appeal. 5 In response to the question about grounds of appeal, Ms Caporale has said no more than that she, on behalf of the companies she represents, questions the validity of the decision of the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473 and intends to appeal to the High Court, in some fashion or other, in an attempt to have the Broadbeach decision revisited with particular reference to its conclusions regarding the impact of conclusivity provisions in taxation legislation upon the question whether a genuine dispute can ever arise in relation to a tax debt to which such provisions apply. 6 The proposition that the Broadbeach case was wrongly decided is not one that this court is able to entertain. The unanimous decision of the High Court is binding on this court and on the New South Wales Court of Appeal to which any appeal from the decision of 2 December 2010 lies. Therefore, simply to say that Broadbeach is wrong and ought to be revisited and revised does not represent a ground of appeal in the present matter. 7 I would add that there were two bases to the decision of 2 December. The Broadbeach aspect was addressed after it had been decided that the application by the seven plaintiffs together was not a valid application under section 459G because it was an application by which all seven together sought an order setting aside all seven statutory demands. For that reason alone, dismissal of the proceedings was warranted. 8 That conclusion had nothing to do with the Broadbeach case and Ms Caporale has said nothing this morning by way of outline of grounds of appeal on that aspect. 9 Because Ms Caporale has identified no arguable case that might be taken to the Court of Appeal on behalf of the seven companies, the notice of motion filed on 7 December 2010 is dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.