Commissioner of Taxation v Ross (No 2) [2021] FCA 1088

Commissioner of Taxation v Ross (No 2) [2021] FCA 1088

The Cross-Appeal succeeded on its core ground and the usual order as to costs should apply, with a modest reduction to reflect procedural amendments. Issue-by-issue cost apportionment is inappropriate given the major success of the taxpayers, and indemnity costs are not justified because the Commissioner's refusal of a settlement offer was reasonable in light of his own ultimate success.

Jurisdiction
Australia
Judgment Date
09 September 2021
Procedural Posture
Appeal and Cross Appeal (from AAT Decisions) / Post Judgment Costs Determination
Outcome
Partly in favour of the respondents on the Cross-Appeal regarding costs. No order as to costs on the Appeal. Application for indemnity costs refused.
Legal Topics
['costs' 'appeal' 'remittal to Tribunal' 'indemnity Costs' 'liberty to Apply' 'reopening of Judgments']
['taxation Law' 'civil Procedure'] ['costs' 'appeal' 'remittal to Tribunal' 'indemnity Costs' 'liberty to Apply' 'reopening of Judgments']

Case Brief

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Procedural Posture

Appeal and Cross Appeal (from AAT Decisions) / Post Judgment Costs Determination

Legal Issues

  1. 1 ['Whether costs should be apportioned on an issue-by-issue basis or follow the event' 'Whether costs should be ordered on the indemnity basis in light of a Calderbank letter' 'Whether the Court has jurisdiction to reopen the case or vary final orders post entry' 'Whether the Commissioner should be responsible for the costs of the Cross-Appeal given success of the taxpayers']

Ratio Decidendi

The Cross-Appeal succeeded on its core ground and the usual order as to costs should apply, with a modest reduction to reflect procedural amendments. Issue-by-issue cost apportionment is inappropriate given the major success of the taxpayers, and indemnity costs are not justified because the Commissioner's refusal of a settlement offer was reasonable in light of his own ultimate success.

Court Disposition

Partly in favour of the respondents on the Cross-Appeal regarding costs. No order as to costs on the Appeal. Application for indemnity costs refused.

Orders

  • ['No order as to the costs of the appeal by the Commissioner of Taxation.' "The Commissioner pay 95% of the taxpayers' costs of their cross-appeal."]