IN THE MATTER OF BRUTON HOLDINGS PTY LIMITED (IN LIQUIDATION) ACN 078 683 182

THE COURT DECLARES THAT:

1.                  The Plaintiff is not entitled to indemnification by exoneration or recoupment out of the property of the Bruton Educational Trust for expenses incurred in the proceedings NSD 1222 of 2006 after 28 February 2007.

THE COURT DIRECTS THAT:

2.                  A Further Amended Interlocutory Process be filed in accordance with these reasons within 7 days.

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IN THE MATTER OF BRUTON HOLDINGS PTY LIMITED (IN LIQUIDATION) ACN 078 683 182

REASONS FOR JUDGMENT

1                     This proceeding is the subject of a recent judgment of Graham J: Commissioner of Taxation v Bruton Holdings Pty Limited (In Liquidation) [2010] FCA 978.  His Honour made the following declaration:

Bruton Holdings Pty Limited (In Liquidation) is not entitled to indemnification by exoneration or recoupment out of the property of the Bruton Educational Trust for expenses incurred in the proceedings NSD 966 of 2007 or proceedings for special leave to appeal S68 of 2009 and on appeal to the High Court of Australia S158 of 2009.

This was the declaration sought in paragraph 1 of the Amended Interlocutory Process (the Interlocutory Process) filed by the Applicant/First Defendant in the proceeding.  The question whether such a declaration should be made was the subject of an order for separate determination made by his Honour on 9 February 2010.

2                     Paragraph 1a of the Interlocutory Process also seeks the following declaration:

Declaration that the Plaintiff is not entitled to indemnification by exoneration or recoupment out of the property of the Bruton Educational Trust for expenses incurred in the proceedings NSD 1222 of 2006.

The proceeding referred to in the proposed declaration is referred to in para [12] of his Honour’s reasons for judgment.  His Honour identified it as one in which the Respondent/Plaintiff appealed against the decision of the Commissioner of Taxation disallowing its objection in relation to its application for endorsement as a tax exempt entity. 

3                     On 9 February 2010 his Honour granted leave to the Applicant/First Defendant to amend paragraph 1a of the Amended Process by adding the words “after 28 February 2007” to the end of the proposed declaration.  An amended document does not appear to have been filed.  I will direct the Applicant/First Defendant to file such a document within 7 days. 

4                     The Applicant/First Defendant has asked me to make the additional declaration referred to in paragraph 1a of the Interlocutory Process (as amended in accordance with the leave granted on 9 February 2010) on the basis that his entitlement to that declaration follows from his Honour’s reasons. 

5                     The Respondent/Plaintiff accepts that if his Honour’s reasons for making the first declaration are correct then the further declaration should also be made.  On that basis the Respondent/Plaintiff does not oppose the making of the additional declaration now sought.  At the same time it has foreshadowed a possible appeal against both the existing and the proposed declarations.

6                     In the circumstances, I am prepared to make the additional declaration now sought. 

Associate:

Dated:         9 September 2010