Favotto Family Restaurants Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 120

Supreme Court New South Wales

Medium Neutral Citation: Favotto Family Restaurants Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 120 Hearing dates: 1 and 2 October 2019 Date of orders: 26 February 2020 Decision date: 26 February 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Set aside the decisions dated 11 August 2015 and 2 December 2016 of the defendant in relation to the Sale of Assets Agreement dated 29 March 2015 (the Lakemba Agreement). 2. Set aside the decision dated 16 December 2016 of the defendant in relation to the Sale of Business Agreement dated 6 November 2012 (the Menai Agreement). 3. Revoke in full each of the Duties Assessments issued by the defendant and dated 10 December 2015. 4. Order the defendant to pay the plaintiff's costs of the proceedings. Catchwords: TAXES AND DUTIES — whether transactions by which plaintiff obtained right to operate two McDonald's restaurants were dutiable transactions — whether transactions effected transfers of goodwill — transactions properly understood as limited licences — no transfer of goodwill and transactions not dutiable Legislation Cited: Administration Act, ss 97, 100(3) Duties Act 1997 (NSW), ss 8, 9 10, 11, 12, 35, Dictionary Petroleum Retail Marketing Franchise Act 1980 (Cth) Stamp Act 1894 (Qld), s 54 Supreme Court Act 1970 (NSW), s 19 Taxation Administration Act 1997 (NSW), s 97 Trade Practices Act 1974 (Cth), s 51AE Cases Cited: ACI Australia Ltd v Glamour Glaze Pty Ltd (1988) 11 IPR 269; [1988] ATPR 40-868 AFA v Garendon Investments Pty Ltd (1995) 37 NSWLR 221 Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 Coles Myer Limited v Commissioner of State Revenue (Vic) 98 [1998] 4 VR 728 Commissioner of State Revenue (WA) v Placer Dome Inc [2018] HCA 59; (2018) 93 ALJR 65 Commissioner of State Revenue v Lend Lease Developments Pty Ltd (2014) 254 CLR 142; [2014] HCA 51 Commissioner of Taxation of the Commonwealth of Australia v Murry (1998) 193 CLR 605; [1998] HCA 42 Commissioners of Inland Revenue v Muller & Co's Margarine Ltd [1901] AC 217 Geraghty v Minter (1979) 142 CLR 177; [1979] HCA 42 Grain Growers Ltd v Chief Commissioner of State Revenue [2015] NSWSC 925 Kenmir Ltd v Frizzell (1968) 1 All ER 414 Kraft Foods Group Brands LLC v Bega Cheese Limited (No 8) [2019] FCA 593, (2019) 370 ALR 371 Llewellyn v Rutherford (1875} LR 10 CP 456 McDonald's Australia Holdings Ltd v Commissioner of State Revenue (Qld) [2004] QSC 357 PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 at 655; [2000] HCA 59 Ranoa Pty Ltd v BP Oil Distribution Ltd & Anor (1989) 91 ALR 251 Roussos v Commissioner of Stamp Duties (Tas) (1992) 23 ATR 336 Sturt Football Club Inc v Commissioner of State Taxation [2010] SASC 279; (2010) 80 ATR 532 Sun World International Inc v Registrar, Plant Breeders' Rights (1998) 87 FCR 405 Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) (2011) 245 CLR 446; [2011] HCA 41 Texts Cited: Butterworths Concise Australian Legal Dictionary (3rd ed, 2004, LexisNexis Butterworths) Category: Principal judgment Parties: Favotto Family Restaurants Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: I Jackman SC with D Barlin (Plaintiff) M Richmond SC with AH Rider (Defendant)