Cannon v Griffiths & Ors [2015] NSWSC 1055

Cannon v Griffiths & Ors [2015] NSWSC 1055

The Court dismissed the notice of motion and summons because the settlement clause made the payment inclusive of taxes and subject to withholding, there was a bona fide issue as to whether some or all of the payment was an employment termination payment, and any declaration on tax liability or withholding would not bind the Commissioner of Taxation. The appropriate forum for resolving the tax issue was the statutory tax ruling and assessment process, not declaratory relief in these proceedings.

Jurisdiction
Australia
Judgment Date
30 July 2015
Procedural Posture
Application for Declaratory Relief Concerning Tax Withholding From a Settlement Payment / Notice of Motion and Summons Dismissed
Outcome
Plaintiff's notice of motion and summons dismissed; costs ordered against the plaintiff.
Legal Topics
['discretionary Refusal of Declaratory Relief' 'settlement After Mediation' 'employment Termination Payment' 'tax Withholding' 'commissioner of Taxation Not Bound by Declaration' 'costs']
['civil Procedure' 'declaratory Relief' 'taxation' 'employment'] ['discretionary Refusal of Declaratory Relief' 'settlement After Mediation' 'employment Termination Payment' 'tax Withholding' 'commissioner of Taxation Not Bound by Declaration' 'costs']

Case Brief

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Procedural Posture

Application for Declaratory Relief Concerning Tax Withholding From a Settlement Payment / Notice of Motion and Summons Dismissed

Legal Issues

  1. 1 ['Whether the Court should entertain declaratory relief that no tax was payable or could be withheld from the settlement sum.' 'Whether there was a bona fide dispute that some or all of the settlement payment was an employment termination payment.' "Whether Citibank could be required to execute settlement deeds reflecting the plaintiff's position that no tax should be withheld." 'Whether costs should be ordered against the plaintiff after dismissal of the notice of motion and summons.']

Ratio Decidendi

The Court dismissed the notice of motion and summons because the settlement clause made the payment inclusive of taxes and subject to withholding, there was a bona fide issue as to whether some or all of the payment was an employment termination payment, and any declaration on tax liability or withholding would not bind the Commissioner of Taxation. The appropriate forum for resolving the tax issue was the statutory tax ruling and assessment process, not declaratory relief in these proceedings.

Court Disposition

Plaintiff's notice of motion and summons dismissed; costs ordered against the plaintiff.

Orders

  • ["In proceedings number 00213045/2014 the plaintiff's notice of motion filed 23 July 2015 be dismissed." 'In the proceedings that were commenced by the summons filed on 29 July 2015, the solicitor for the plaintiff is directed to attend upon the registry within a reasonable period to file the summons and pay the...