UNSW Global Pty Ltd v Chief Commissioner of State Revenue (No. 2) [2017] NSWSC 26

Supreme Court New South Wales

Medium Neutral Citation: UNSW Global Pty Ltd v Chief Commissioner of State Revenue (No. 2) [2017] NSWSC 26 Hearing dates: 31 January 2017 Decision date: 03 February 2017 Jurisdiction: Equity - Revenue List Before: White J Decision: Declare that:

1. In respect of the period 1 June 2007 to 30 June 2007, the plaintiff was not an 'employment agent' within the meaning of section 3C of the Payroll Tax Act 1971 (NSW); and

2. In respect of the period 1 July 2007 to 30 June 2012, the plaintiff was not an 'employment agent' within the meaning of section 37 of the Payroll Tax Act 2007 (NSW). Catchwords: REVENUE – Whether declarations should be made Category: Consequential orders (other than Costs) Parties: UNSW Global Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: C Burnett (Plaintiff) E Bishop (Defendant)

Solicitors: Bartier Perry (Plaintiff) Crown Solicitors (Defendant) File Number(s): 2014/140127

1. HIS HONOUR: On 31 January 2017 I made certain orders to give effect to my reasons of 21 December 2016. The parties agreed that those orders gave effect to my reasons. 2. UNSW Global sought two additional declarations, namely: "6. In respect of the period 1 June 2007 to 30 June 2007, the plaintiff was not an 'employment agent' within the meaning of section 3C of the Payroll Tax Act 1971 (NSW); and 7. In respect of the period 1 July 2007 to 30 June 2012, the plaintiff was not an 'employment agent' within the meaning of section 37 of the Payroll Tax Act 2007 (NSW)." 1. The Chief Commissioner submitted that it was not appropriate for those declarations to be made. He submitted that the declarations sought went beyond the matters that had been the subject of evidence and submissions. The Chief Commissioner submitted that in my reasons I had not made findings of fact as to whether UNSW Global was an employment agent. 2. That is only true in the sense that I did not make findings as to whether UNSW Global was an employment agent within some ordinary meaning of that expression. It is not true in relation to the defined sense of employment agent in ss 3C and 37. I found that UNSW Global was not an employment agent in the years in question because its expert consultants did not do work or provide services in and for the conduct of its clients' businesses. 3. In its Appeal Statement UNSW Global sought the declarations that are now sought. On 24 July 2015 I noted the agreement of the parties that the evidence served by UNSW Global in the proceedings to that date was sufficiently representative of its business, so far as was relevant to this proceeding, to allow the determination of all issues arising in the proceedings. One of those issues was whether the basis for a conclusion that UNSW Global was not an employment agent within the defined expressions of that term for the relevant tax years existed, and if so, whether the declarations sought should be made. 4. At the hearing the Chief Commissioner did not submit that it would be inappropriate to make the declarations sought if UNSW Global's arguments otherwise succeeded. Rather, argument was addressed to the substantive issues of construction. There was a factual issue as to whether work done by experts for clients in the domestic and international consulting project service lines of business was carried out in the clients' businesses. That issue was resolved in UNSW Global's favour. 5. Given the Chief Commissioner's acceptance that the evidence adduced by UNSW Global was sufficiently representative of its business so far as relevant to this proceeding to allow the determination of all issues arising in the proceedings, which included whether a declaration as sought should be made, I think it appropriate to make the declarations sought. 6. It is likely that the Chief Commissioner would in any event be estopped from seeking to raise a fresh assessment in respect of any of the tax years in question based on any contention that other experts retained by UNSW Global performed their services in and for the conduct of the business of UNSW Global's clients. I do not think that any such contention would be open to the Chief Commissioner having regard to his agreement noted at [5] above and my conclusions. It is desirable to make the declarations sought so as to quash the possibility of further litigation on this issue. 7. For these reasons I make the declarations sought in paras 6 and 7 of the proposed orders as set out above at [2]. 8. I note that at the end of the third sentence of para [62] of my reasons, I inadvertently used the phrase "business of the employment agent". It will be clear from the whole of the judgment that I meant to say "business of the employment agent's client". I will correct the published reasons.