Commissioner of Taxation v Macquarie Health Corp Ltd & Ors [1998] FCA 1716

Commissioner of Taxation v Macquarie Health Corp Ltd & Ors [1998] FCA 1716

Justice required the amendment to be allowed so the issue of abuse of process was clearly before the court. The applicant was required to pay the costs of all parties of the notice of motion and today's costs, while any costs thrown away by the amendment would be borne by the trustees.

Parties
Applicant: Commissioner of Taxation; First Respondent: Macquarie Health Corporation Limited; Second Respondent: Business and Professional Leasing Pty Ltd; Third Respondent: Ryndale Pty Ltd; Fourth Respondent: Sarzana Holdings Pty Ltd; Fifth Respondent: Richard Walter Pty Limited (in liquidation); Sixth Respondent: AT Holdings Pty Ltd; Seventh Respondent: Morlea Professional Services Pty Ltd
Jurisdiction
Australia
Judgment Date
30 September 1998
Procedural Posture
Civil / Interlocutory Application / Amendment to Cross Claim
Outcome
Amendment to second cross-claim allowed; costs orders made.
Legal Topics
Abuse of Process, Amendment of Pleadings, Costs
Civil Procedure Abuse of Process Amendment of Pleadings Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Commissioner of Taxation

Applicant

Macquarie Health Corporation Limited

First Respondent

Business and Professional Leasing Pty Ltd

Second Respondent

Ryndale Pty Ltd

Third Respondent

Sarzana Holdings Pty Ltd

Fourth Respondent

Richard Walter Pty Limited (in liquidation)

Fifth Respondent

AT Holdings Pty Ltd

Sixth Respondent

Morlea Professional Services Pty Ltd

Seventh Respondent

Procedural Posture

Civil / Interlocutory Application / Amendment to Cross Claim

Legal Issues

  1. 1 Whether it would be an abuse of process for the parties to contend that certain payments were loans
  2. 2 Whether amendment to the second cross-claim to raise abuse of process allegation should be allowed
  3. 3 Who should bear the costs of the amendment and the motion

Ratio Decidendi

Justice required the amendment to be allowed so the issue of abuse of process was clearly before the court. The applicant was required to pay the costs of all parties of the notice of motion and today's costs, while any costs thrown away by the amendment would be borne by the trustees.

Court Disposition

Amendment to second cross-claim allowed; costs orders made.

Orders

  • The cross claimants on the second cross claim have leave to amend the amended second cross claim by adding paragraph 9A regarding abuse of process.
  • The second cross-claimants pay the costs thrown away by the amendment.