Elsinora Global Limited v Healthscope Limited [2005] FCA 302

Elsinora Global Limited v Healthscope Limited [2005] FCA 302

The applicants' pleaded case, assumed to be true for the purposes of the motion, was arguable because factual findings at trial could establish that Healthscope and ANZ never received or held money on behalf of ECMI, and it might then be unnecessary to decide whether Wong should be followed. The Commissioner's reliance on s 172 of the Property Law Act 1958 (Vic) could not support summary dismissal because that case had not been pleaded and would raise issues for trial. The amended statement of claim was not an abuse of process merely because it did not plead facts advanced by the Commissioner as giving a different complexion to the dispute; any further detail could be sought by particulars.

Jurisdiction
Australia
Judgment Date
24 March 2005
Procedural Posture
Proceedings Seeking Declarations That Notices Issued Under S 255 of the Income Tax Assessment Act 1936 (cth) Are Invalid and Related Relief Concerning the Withholding Sum / Third Respondent's Motion for Summary Dismissal or Stay Under Federal Court Rules O 20 R 2, or Strike Out of the Amended Statement of Claim Under O 11 R 16
Outcome
The third respondent's motion was dismissed, with costs to be paid to the applicants.
Legal Topics
['section 255 Notices' 'non Resident Taxpayer' 'capital Gains Tax' 'summary Dismissal' 'strike Out of Pleadings' 'abuse of Process' 'voidable Alienation of Property']
['taxation' 'practice and Procedure' 'property Law'] ['section 255 Notices' 'non Resident Taxpayer' 'capital Gains Tax' 'summary Dismissal' 'strike Out of Pleadings' 'abuse of Process' 'voidable Alienation of Property']

Case Brief

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Procedural Posture

Proceedings Seeking Declarations That Notices Issued Under S 255 of the Income Tax Assessment Act 1936 (cth) Are Invalid and Related Relief Concerning the Withholding Sum / Third Respondent's Motion for Summary Dismissal or Stay Under Federal Court Rules O 20 R 2, or Strike Out of the Amended Statement of Claim Under O 11 R 16

Legal Issues

  1. 1 ["Whether the applicants' claim that the s 255 notices were invalid was so untenable that the proceedings should be stayed or dismissed summarily" 'Whether the Commissioner could rely on s 172 of the Property Law Act 1958 (Vic) without pleading that case in a cross-claim' 'Whether the amended statement of claim was an abuse of process or liable to be struck out because it omitted facts said by the Commissioner to cast a different light on the pleaded allegations' 'Whether further particulars, rather than strike out, were the appropriate response to alleged pleading deficiencies']

Ratio Decidendi

The applicants' pleaded case, assumed to be true for the purposes of the motion, was arguable because factual findings at trial could establish that Healthscope and ANZ never received or held money on behalf of ECMI, and it might then be unnecessary to decide whether Wong should be followed. The Commissioner's reliance on s 172 of the Property Law Act 1958 (Vic) could not support summary dismissal because that case had not been pleaded and would raise issues for trial. The amended statement of claim was not an abuse of process merely because it did not plead facts advanced by the Commissioner as giving a different complexion to the dispute; any further detail could be sought by particulars.

Court Disposition

The third respondent's motion was dismissed, with costs to be paid to the applicants.

Orders

  • ["The third respondent's motion filed 25 February 2005 be dismissed." "The third respondent pay the applicants' costs of the motion."]