Auspac Corporate Managers Pty Ltd v J Noble Pty Ltd [2003] NSWSC 548

Auspac Corporate Managers Pty Ltd v J Noble Pty Ltd [2003] NSWSC 548

The Court declined to answer the questions because they were hypothetical and premature: the Commissioner of Taxation might agree with the applicant and no controversy might arise; the proper contradictor was the Commissioner, who was not a party; any advice would not bind the Commissioner and would produce no foreseeable consequence or utility for the applicant, Noble, or fund members. The summons was therefore dismissed, with no order as to costs because the applicant trustee had not acted mala fide and should not be burdened with a costs order.

Jurisdiction
Australia
Judgment Date
20 June 2003
Procedural Posture
Application for Opinion, Advice or Direction Under Trustee Act 1925, S 63(1) / Summons Heard Ex Parte; Ex Tempore Judgment
Outcome
Summons dismissed. No orders as to costs.
Legal Topics
['judicial Advice to Trustees' 'declaratory Relief and Judicial Power' 'hypothetical Questions' 'proper Contradictor' 'employee Benefit Fund Tax Consequences' 'costs of Trustee Proceedings']
['trusts' 'equity' 'practice and Procedure' 'taxation'] ['judicial Advice to Trustees' 'declaratory Relief and Judicial Power' 'hypothetical Questions' 'proper Contradictor' 'employee Benefit Fund Tax Consequences' 'costs of Trustee Proceedings']

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Procedural Posture

Application for Opinion, Advice or Direction Under Trustee Act 1925, S 63(1) / Summons Heard Ex Parte; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Court should give advice under Trustee Act 1925, s 63(1) on whether employer contributions to the fund would be assessable income of the trustee, deductible to the employer, or subject to fringe benefits tax.' 'Whether the questions were hypothetical and of no utility in the absence of the Commissioner of Taxation as a proper contradictor.' 'Whether further advice on prosecuting or defending proceedings against the Commissioner of Taxation if assessments were issued was premature.' 'Whether any costs order should be made against the applicant trustee.']

Ratio Decidendi

The Court declined to answer the questions because they were hypothetical and premature: the Commissioner of Taxation might agree with the applicant and no controversy might arise; the proper contradictor was the Commissioner, who was not a party; any advice would not bind the Commissioner and would produce no foreseeable consequence or utility for the applicant, Noble, or fund members. The summons was therefore dismissed, with no order as to costs because the applicant trustee had not acted mala fide and should not be burdened with a costs order.

Court Disposition

Summons dismissed. No orders as to costs.

Orders

  • ['Summons dismissed.' 'No order as to costs.']