Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation (No 2) [2018] FCAFC 156

Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation (No 2) [2018] FCAFC 156

An issues-based approach was appropriate because the proceedings involved two discrete issues and each party succeeded on one issue. The in-house asset issue, on which the Commissioner succeeded, occupied substantially more time and expense than the sole purpose issue, on which Aussiegolfa succeeded, making it appropriate for Aussiegolfa to pay 40 per cent of the Commissioner's costs of the Federal Court Appeal and of the first instance proceeding. For the AAT Appeal, costs should follow the event because the Commissioner's appeal was dismissed and there was no proper basis to depart from the ordinary rule.

Jurisdiction
Australia
Judgment Date
18 September 2018
Procedural Posture
Appeals Concerning Costs Following Reasons for Judgment in Federal Court and AAT Appeals / Full Court Determination of Costs on the Papers After Judgment
Outcome
VID 54 of 2018: appeal allowed in part. VID 83 of 2018: appeal dismissed.
Legal Topics
['issues Based Costs Orders' 'costs Following the Event' 'percentage Based Costs Order' 'in House Asset Issue' 'sole Purpose Test']
['practice and Procedure' 'costs' 'taxation' 'superannuation'] ['issues Based Costs Orders' 'costs Following the Event' 'percentage Based Costs Order' 'in House Asset Issue' 'sole Purpose Test']

Case Brief

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Procedural Posture

Appeals Concerning Costs Following Reasons for Judgment in Federal Court and AAT Appeals / Full Court Determination of Costs on the Papers After Judgment

Legal Issues

  1. 1 ['Whether an issues-based approach to costs should be adopted where each party succeeded on one discrete issue.' "Whether costs in the Federal Court Appeal and at first instance should be ordered issue by issue or by a percentage-based order requiring one party to pay a proportion of the other party's costs." 'Whether costs in the AAT Appeal should follow the event.']

Ratio Decidendi

An issues-based approach was appropriate because the proceedings involved two discrete issues and each party succeeded on one issue. The in-house asset issue, on which the Commissioner succeeded, occupied substantially more time and expense than the sole purpose issue, on which Aussiegolfa succeeded, making it appropriate for Aussiegolfa to pay 40 per cent of the Commissioner's costs of the Federal Court Appeal and of the first instance proceeding. For the AAT Appeal, costs should follow the event because the Commissioner's appeal was dismissed and there was no proper basis to depart from the ordinary rule.

Court Disposition

VID 54 of 2018: appeal allowed in part. VID 83 of 2018: appeal dismissed.

Orders

  • ['VID 54 of 2018: The appeal be allowed in part.' "VID 54 of 2018: The order made by the primary judge on 15 December 2017 be set aside and in lieu thereof there be a declaration that the leasing of the Burwood Property by the DomaCom Fund to Mr Benson's daughter in the circumstances described in the reasons of the...