RFZD v Commissioner of Taxation [2023] FCA 324

RFZD v Commissioner of Taxation [2023] FCA 324

The appeal was found incompetent because the applicant was a deregistered company and therefore not a legal person able to maintain proceedings. The solicitors for the applicant failed to discharge the burden of establishing competency of the appeal. As continuing the appeal was hopeless after the solicitors were put on notice, costs were awarded against them, including indemnity costs from 11 October 2022 onwards.

Parties
Applicant: RFZD; Respondent: Commissioner of Taxation
Jurisdiction
Australia
Judgment Date
14 April 2023
Procedural Posture
Appeal / Judgment on Objection to Competency of Appeal and Costs
Outcome
Appeal dismissed as incompetent; costs awarded against applicant's solicitors, including indemnity costs from 11 October 2022.
Legal Topics
Appeal Competency, Deregistration of Company, Costs Against Solicitors
Taxation Corporations Appeal Competency Deregistration of Company Costs Against Solicitors

Case Brief

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Parties

RFZD

Applicant

Commissioner of Taxation

Respondent

Procedural Posture

Appeal / Judgment on Objection to Competency of Appeal and Costs

Legal Issues

  1. 1 Whether an appeal instituted on behalf of a deregistered company is competent
  2. 2 Whether solicitors can be ordered to pay costs on an indemnity basis for maintaining an incompetent appeal

Ratio Decidendi

The appeal was found incompetent because the applicant was a deregistered company and therefore not a legal person able to maintain proceedings. The solicitors for the applicant failed to discharge the burden of establishing competency of the appeal. As continuing the appeal was hopeless after the solicitors were put on notice, costs were awarded against them, including indemnity costs from 11 October 2022 onwards.

Court Disposition

Appeal dismissed as incompetent; costs awarded against applicant's solicitors, including indemnity costs from 11 October 2022.

Orders

  • Pursuant to rule 33.30(5) of the Federal Court Rules 2011 (Cth) the appeal is dismissed.
  • The solicitors on the record for the applicant named in the notice of appeal are to pay the respondent's costs in the appeal, including any reserved costs, to be taxed if not agreed: (a) up to 10 October 2022, as costs as between party and party; and (b) on and from 11 October 2022, as costs on an indemnity basis.