Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 Hearing dates: 7 December 2015 Decision date: 16 December 2015 Before: Gleeson JA at [1]; Leeming JA at [2]; Emmett AJA at [57] Decision: Appeal dismissed, with costs. Catchwords: AGENCY – agent's right of reimbursement from principal – freight forwarder appointed as customs agent by financier – contract providing no liability for duties and taxes – no claim available in contract or restitution – Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; 233 CLR 635 applied

CUSTOMS – customs duty payable by owner of goods – definition of "owner" – freight forwarder entered goods for home consumption as agent for financier – freight forwarder and financier both "owners" and both primarily liable to pay customs duty

JURISDICTION – District Court – whether restitutionary claim within jurisdiction – District Court Act 1973 (NSW), s 44(1)(a)

TAXATION – GST – taxable importation – freight forwarder entered imported goods for home consumption as agent for financier – invoice and air waybill described financier as owner and consignee – whether financier "imported" the goods for purpose of making taxable importation Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 13-5, 13-15 Civil Aviation (Carriers' Liability) Act 1959 (Cth) Customs Act 1901 (Cth), ss 4, 68, 165, 181, 183 District Court Act 1973 (NSW), ss 44, 127 Supreme Court Act 1970 (NSW), s 53 Cases Cited: Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited [2000] HCA 25; 202 CLR 588 Chief Executive Officer of Customs v Tony Longo Pty Ltd [2001] NSWCA 147; 52 NSWLR 458 Emery Air Freight Corporation v Merck Sharpe & Dohme (Aust) Pty Ltd [1999] NSWCA 415; 47 NSWLR 696 Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 33 Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27; 232 CLR 635 Maviglia v Maviglia [1999] NSWCA 188 Re Clune; Ex parte Verge v Isabella Nominees Pty Ltd (in liq) (1988) 14 ACLR 261 Siemens Ltd v Schenker International (Australia) Pty Ltd [2004] HCA 11; 216 CLR 418 Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 Texts Cited: Halsbury's Laws of England (5th ed, 2008), vol 1 Category: Principal judgment Parties: Mega-top Cargo Pty Ltd (Appellant) Moneytech Services Pty Ltd (Respondent) Representation: Counsel: T Hall, solicitor (Appellant) C D Wood, J K Raftery (Respondent)