Ashton v Monteleone (No 2) [2010] NSWSC 745

New South Wales Supreme Court

CITATION : Ashton v Monteleone (No 2) [2010] NSWSC 745

HEARING DATE(S) : 2 July 2010 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 2 July 2010

DECISION : Defendants ordered to pay 80% of plaintiffs' costs.

CATCHWORDS : PROCEDURE - Costs - plaintiffs successful in having contract for sale of premises partly commercial and partly residential rectified by adding to the purchase price "+ GST" - defence alleged GST not payable because not a taxable supply under A New Tax System (Goods and Services Tax) Act 1999 (Cth) as plaintiffs were not carrying on an enterprise - order made for plaintiffs to seek a private indirect tax ruling from the Commissioner of Taxation - ruling made that not a taxable supply because GST turnover and projected GST turnover did not exceed the registration turnover threshold and no GST was payable - whether there should be a discount in the plaintiffs' costs for pyrrhic victory

LEGISLATION CITED : A New Tax System (Goods and Services Tax) Act (1999) (Cth)

CASES CITED : Ashton v Monteleone [2010] NSWSC 258

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 (First and Second Defendant)

SOLICITORS : ERA Legal (Plaintiffs) Garland Hawthorn Brahe (First and Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION