FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Noza Holdings Pty Ltd (No 2) [2012] FCAFC 54

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Each party bear their own costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Each party bear their own costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Honourable Justice Gordon dated 18 February 2011 in proceeding VID 759 of 2009 be set aside.

3.    The appellant’s objection decision dated 5 October 2009 to disallow the respondent’s objection dated 4 June 2009 against its deemed assessment of tax for the year of income ended 30 November 2004 be affirmed.

4.    The appellant pay 80% of the respondent’s costs of proceeding VID 759 of 2009.

5.    Each party bear their own costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    Paragraph 2 of the orders of the Honourable Justice Gordon dated 18 February 2011 in proceeding VID 758 of 2009 be set aside.

3.    The appellant’s objection decision dated 5 October 2009 to disallow the respondent’s objection dated 4 June 2009 against its assessment of tax for the year of income ended 30 November 2003 dated 6 April 2009 be set aside and in lieu thereof it is ordered that the objection be allowed in part and the matter be remitted to the appellant to re-assess by allowing a deduction in the amount of $166,003,257 in addition to the $4,980,097 already allowed, against the respondent’s assessable income for the year ended 30 November 2003.

4.    Each party bear their own costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Honourable Justice Gordon dated 18 February 2011 in proceeding VID 761 of 2009 be set aside.

3.    The appellant’s objection decision dated 5 October 2009 to disallow the respondent’s objection dated 15 June 2007 against its deemed assessment of tax for the year ended 30 November 2005 be affirmed.

4.    The appellant pay 80% of the respondent’s costs of proceeding VID 761 of 2009.

5.    Each party bear their own costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Honourable Justice Gordon dated 18 February 2011 in proceeding VID 764 of 2009 be set aside.

3.    The appellant’s objection decision dated 5 October 2009 to disallow the respondent’s objection dated 12 June 2007 against its deemed assessment of tax for the year of income ended 30 November 2002 be affirmed.

4.    The appellant pay 80% of the respondent’s costs of proceeding VID 764 of 2009.

5.    Each party bear their own costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On 28 March 2012 we published our reasons for judgment but directed the parties to bring in short minutes of order to give effect to the reasons for judgment and to file written submissions on the issues of the costs of the appeals and costs before the primary judge: see Commissioner of Taxation v Noza Holdings Pty Ltd [2012] FCAFC 43.

2    In light of those submissions, the following sentence in relation to one of the six appeals requires amendment. At [93] of our reasons for judgment we said that the appeal in respect of Noza for the 2003 income year (VID 198/2011) should be dismissed. In respect of VID 198/2011 the parties agree that, rather than dismissing the appeal, it is necessary that the appeal be allowed in part and that there be consequential orders. We agree. A corrigendum will be issued in the following terms:

In [93] of the Reasons for Judgment, delete the second sentence and substitute the following:

‘The appeal in respect of Noza for the 2003 income year (VID 198/2011) should be allowed in part, subject to setting aside the Commissioner’s objection decision and ordering that, on remission to the Commissioner, the objection be allowed in part by allowing a deduction in the amount of $166,003,257 in addition to the $4,980,097 already allowed.’

3    This leaves the question of costs of the appeals and of the proceedings before the primary judge.

Costs of the appeals

4    At trial, having regard to the relative success of the parties, it was ordered by consent that the Commissioner pay 80% of the respondents’ costs in each proceeding.

5    In our view it is also appropriate that costs orders be made across all the appeals: they were interlinked.

6    The Commissioner submits that the parties should pay their own costs of the appeals. The respondents submit that the Commissioner should pay 90% of the respondents’ costs of the appeals.

7    In our view each party should bear its own costs of the appeals to reflect the fact that on appeal Noza succeeded in relation to the 2003 income year but the Commissioner succeeded in relation to the 2002, 2004 and 2005 income years on an issue common to those years. Further, the respondents applied unsuccessfully to file a proposed notice of contention, this application been the subject of a round of written submissions after the appeals were heard.

Costs of the proceedings before the primary Judge

8    In the reasons for judgment given on 28 March 2012, we indicated that we were inclined to the view that the costs orders below should be set aside and the Commissioner be ordered to pay a lesser percentage of the applicants’ costs before the primary judge. Having considered the written submissions of the parties on this issue we are not persuaded that the extent of the Commissioner's success on the appeals justifies a variation to the 80% proportion ordered, by consent, at first instance. It is to be recalled that a large proportion of the trial was concerned with the Part IVA issue on which the present respondents succeeded.

Associate:

Dated:    20 April 2012