Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chief Commissioner of State Revenue v Boss Constructions (NSW) Pty Ltd [2018] NSWCA 51 Hearing dates: 14 March 2018 Decision date: 14 March 2018 Before: Basten JA, Simpson JA Decision: (1) Subject to the Chief Commissioner accepting liability to bear the costs of the respondent in this Court in any event, grant leave to the applicant to appeal from the judgment of Brereton J given on 11 October 2017. (2) Direct that the Chief Commissioner advise the registrar within 7 days as to whether or not that condition is accepted. (3) In the event that the condition is accepted, direct the applicant file a notice of appeal in the form contained in the white folder within 14 days. (4) The Costs of the application and the appeal to be borne by the Chief Commissioner in any event. Catchwords: CIVIL PROCEDURE – leave to appeal – application to set aside statutory demand – whether out of time – whether proposed grounds better than merely arguable – matter of public importance – whether applicant should pay costs in any event Legislation Cited: Corporations Act 2001 (Cth), s 459G Cases Cited: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43 Category: Procedural and other rulings Parties: Chief Commissioner of State Revenue (Applicant) Boss Constructions (NSW) Pty Ltd (Respondent) Representation: Counsel: Mr F Assaf and Mr P J Strickland (Applicant) Mr N Bobos (Director, for Respondent) Solicitors: Stacks Champion (Applicant) Mr N Bobos (Director, for Respondent) File Number(s): 2017/331468 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Division Citation: [2017] NSWSC 1334 Date of Decision: 11 October 2017 Before: Brereton J File Number(s): 2017/221013 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: In this matter leave to appeal is sought by the Chief Commissioner in respect of a judgment of Brereton J in relation to a statutory demand, the judgment being given on 11 October 2017. [1] The judgment held that, although the statutory demand had been served on a date rendering the application to set it aside out of time, the Chief Commissioner was estopped from denying that it had been served two days later. 2. Whether an estoppel can run against the jurisdictional requirement identified in s 459G and related provisions of the Corporations Act 2001 (Cth), in light of considerations discussed in David Grant & Co Pty Ltd v Westpac Banking Corporation, [2] involves a matter of legal principle. It is also a matter of some general importance in the administration of this aspect of the Corporations Act. The legal error relied upon by the Chief Commissioner is more than merely arguable. On that basis, there would be grounds for granting leave to appeal. The second ground sought to be relied on, relating to procedural unfairness, also has reasonable prospects of success. 3. The injustice which the Chief Commissioner says is suffered in these circumstances is the requirement that if the judgment below stands, he will face a full‑blown hearing. That may be so, but it would be applicable to both parties and Mr Bobos, who appears for the company, states that that hearing will take place, in any event. That too is so, but only if the company loses the appeal will the prejudice flowing from the grant of leave materialise, and the parties will both face a full hearing. 4. In these circumstances, the Court is minded to grant leave conditionally. The Chief Commissioner seeks to litigate a point of principle which is important for the administration of the tax laws and should bear the costs in any event. As counsel was not instructed to consent to that condition of a grant of leave proposed by the Court, the Court makes the following orders: 1. Subject to the Chief Commissioner accepting liability to bear the costs of the respondent in this Court in any event, grant leave to the applicant to appeal from the judgment of Brereton J given on 11 October 2017. 2. Direct that the Chief Commissioner advise the registrar within 7 days as to whether or not that condition is accepted. 3. In the event that the condition is accepted, direct the applicant file a notice of appeal in the form contained in the white folder within 14 days. 4. The Costs of the application and the appeal to be borne by the Chief Commissioner in any event. ********** Endnotes 1. In the matter of Boss Engineering (NSW) Pty Limited [2017] NSWSC 1334. 2. (1995) 184 CLR 265; [1995] HCA 43. 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. Decision last updated: 20 March 2018