Cannon v Griffiths & Ors [2015] NSWSC 1055

Supreme Court New South Wales

Medium Neutral Citation: Cannon v Griffiths & Ors [2015] NSWSC 1055 Hearing dates: 29 July 2015 Date of orders: 30 July 2015 Decision date: 30 July 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) In proceedings number 00213045/2014 the plaintiff's notice of motion filed 23 July 2015 be dismissed.

(2) In the proceedings that were commenced by the summons filed on 29 July 2015, the Court:

(a) Directs the solicitor for the plaintiff to attend upon the registry within a reasonable period to file the summons and pay the appropriate fee; and

(b) otherwise orders that the summons be dismissed.

(3) In proceedings no 00213045 of 2014 the Court orders the plaintiff to pay the costs of the defendants and Citicorp Pty Ltd of the notice of motion dated 23 July 2015;

(4) In the proceedings commenced by the summons filed on 29 July 2015 the Court orders the plaintiff to pay the defendants' costs of the summons; and

(5) The Court orders that proceedings no 00213045 of 2014 be adjourned for mention before a Registrar at 9:00am on 24 August 2015.

(6) In proceedings no 00213045 of 2014, the Court orders that the costs of the notice of motion filed on 23 July 2015 be payable forthwith;

(7) The Court notes Citibank's undertaking to the Court not to enforce the costs orders in its favour without the leave of the Court. Catchwords: DECLARATORY RELIEF – discretionary refusal to consider making of declaration – substantive proceedings settled at mediation – heads of agreement involving payment by non-party employee to plaintiff – dispute about whether tax could be withheld from payment – plaintiff seeks declaration that no amount could be withheld from payment for tax – Commissioner of Taxation not a party and not amenable to declarations – found that bona fide dispute as to whether payment was an employment termination payment – refusal to entertain declaratory relief. Legislation Cited: - Civil Procedure Act 2005 – s 73 - Court Suppression and Non-publication Orders Act 2010 – s 10 - Income Tax Assessment Act 1936 – former s 177(1) - Income Tax Assessment Act 1997 (Cth) – s 82.130, s 118.37, s 382.135, schedule 1 (ss 12-85, 16-5, 16-25, 16.30) - Taxation Administration Act 1953 - Cases Cited: - F.J. Bloemen Pty Ltd v Commissioner of Taxation [1981] HCA 27; 147 CLR 360 - Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 - Ibeneweka v Egbuna [1964] 1 WLR 219 - McLaurin v Federal Commissioner of Taxation [1961] HCA 9; 104 CLR 381 - Masters v Cameron [1954] HCA 72; 91 CLR 353 Texts Cited: Young, Declaratory Orders (Butterworths, 2nd Ed, 1984 Category: Procedural and other rulings Parties: Neil Cannon – Plaintiff Paul Griffiths – First Defendant Charif Khodr El Kanawati – Second Defendant Nick Perry – Third Defendant Hugh Dive – Fourth Defendant Representation: Counsel: S.E. McCarthy – Plaintiff A.T.S. Dawson, Ms A Rao – Defendants