Sandini Pty Ltd v Commissioner of Taxation (No 2) [2017] FCA 905

Sandini Pty Ltd v Commissioner of Taxation (No 2) [2017] FCA 905

An apportionment of costs between the respondents best achieves substantial justice, reflecting their respective roles in prolonging the litigation and the success of the applicants, but the conduct did not warrant indemnity costs; thus, the Commissioner is to pay 40% and the second and third respondents 60% of the applicants' costs on a party and party basis.

Parties
First Applicant: Sandini Pty Ltd (ACN 008 921 417) AFT The Karratha Rigging Unit Trust; Second Applicant: Wabelo Pty Ltd (ACN 008 921 426) AFT The Ellison Family Trust; Third Applicant: Christopher James Ellison; Fourth Applicant: Ellison (WA) Pty Ltd (ACN 135 966 773); First Respondent: Commissioner of Taxation for the Commonwealth of Australia; Second Respondent: Debbie Maree Ellison; Third Respondent: Wavefront Asset Pty Ltd (ACN 139 479 968) ATF The Felstead Family Trust
Jurisdiction
Australia
Judgment Date
07 August 2017
Procedural Posture
Costs Application / Post Judgment
Outcome
Costs apportioned on a party and party basis; no indemnity costs awarded.
Legal Topics
Costs, Apportionment of Costs, Indemnity Costs, Declaratory Relief, Party and Party Costs
Civil Procedure Taxation Law Costs Apportionment of Costs Indemnity Costs Declaratory Relief Party and Party Costs

Case Brief

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Parties

Sandini Pty Ltd (ACN 008 921 417) AFT The Karratha Rigging Unit Trust

First Applicant

Wabelo Pty Ltd (ACN 008 921 426) AFT The Ellison Family Trust

Second Applicant

Christopher James Ellison

Third Applicant

Ellison (WA) Pty Ltd (ACN 135 966 773)

Fourth Applicant

Commissioner of Taxation for the Commonwealth of Australia

First Respondent

Debbie Maree Ellison

Second Respondent

Wavefront Asset Pty Ltd (ACN 139 479 968) ATF The Felstead Family Trust

Third Respondent

Procedural Posture

Costs Application / Post Judgment

Legal Issues

  1. 1 Whether departure from the usual rule as to costs is appropriate
  2. 2 Whether indemnity costs should be ordered for certain issues
  3. 3 Whether apportionment of costs between respondents is justified

Ratio Decidendi

An apportionment of costs between the respondents best achieves substantial justice, reflecting their respective roles in prolonging the litigation and the success of the applicants, but the conduct did not warrant indemnity costs; thus, the Commissioner is to pay 40% and the second and third respondents 60% of the applicants' costs on a party and party basis.

Court Disposition

Costs apportioned on a party and party basis; no indemnity costs awarded.

Orders

  • The first respondent pay 40% of the applicants' costs on a party and party basis, to be assessed if not agreed.
  • The second and third respondents pay 60% of the applicants' costs on a party and party basis, including the costs of the interlocutory application heard on 7 September 2016, to be taxed if not agreed.