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T & S Nominees Pty Ltd v Chief Commissioner of State Revenue (Costs) [2017] NSWCATAP 104

Date of judgement 11 May 2017 Proceeding No. AP 16/37429
Judge(s) KP O’Connor, AM, ADCJ;
J McAteer, SM
Court or Tribunal New South Wales Civil and Administrative Tribunal
Legislation cited Civil and Administrative Tribunal Act 2013
Catchwords COSTS – Respondent’s application for costs of appeal – Whether special circumstances – application granted
Cases cited T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 119

Background

These proceedings dealt with an application by the Chief Commissioner of State Revenue for costs of the whole appeal, following the dismissal of an unsuccessful appeal by T & S Nominees Pty Ltd (the Taxpayer) against a decision of the Appeal Panel not to reinstate appeal proceedings instituted by the Taxpayer (see T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAP 6.

The Tribunal at first instance summarily dismissed the Taxpayer’s application for a review of land tax assessments under s.55(1)(c) of the Civil and Administrative Tribunal Act 2013 (“the Act”), for failure to appear at the hearing on 1 and 2 February 2016: T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2016] NSCATAD 119 (the First Instance Decision).

The Taxpayer filed a Notice of Appeal within the time required, but failed to appear at the first directions hearing. The appeal was dismissed for want of appearance.  The Taxpayer applied to the Appeal Panel for reinstatement of the appeal.  The Taxpayer’s application for reinstatement was a day late, and so the Taxpayer applied to the Appeal Panel to exercise its discretion to extend the time to apply for reinstatement.

In light of the matter’s history, and for other reasons set out in its decision, the Appeal Panel refused to extend the time, with the result that the dismissal decision stood: T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAP 6 (the Reinstatement Decision).

Costs of reinstatement proceedings

In its Reinstatement Decision, the Appeal Panel agreed that the Chief Commissioner had demonstrated special circumstances justifying an awarding of costs for the directions hearing on 4 August 2016 and the subsequent steps up to and including the Taxpayer’s application to reinstate the proceedings on 8 November 2016.   

Overall costs of the appeal

In the Reinstatement Decision the Appeal Panel did not deal with the overall costs of the appeal, but indicated that if the Chief Commissioner wished to be heard on that issue it was to notify the Registry and the applicant.  The Chief Commissioner subsequently applied for costs under s.60(2) of the Act on the basis that special circumstances applied, as defined in s.60(3), that is:

  • the lack of tenability of the appeal [paragraph 60(3)(c)];

  • the history of the proceedings including failure to appear and non-compliance with orders of the Tribunal [paragraphs 60(3)(a) and (g)].

The Chief Commissioner filed submissions seeking costs on 9 February 2017, as directed.  The Taxpayer was directed to lodge submissions by 27 February, but sought an extension of time on the basis that it was having difficulty obtaining legal representation.  

The Appeal Panel refused the request for an extension of time, and decided to dispense with a hearing and decide the costs application on the papers, under s.50 of the Act.

Decision

The Tribunal made an order that the Taxpayer pay the Chief Commissioner’s costs of the appeal including the costs of the reinstatement application, superseding the previous costs order of 4 August 2016, which only applied to costs thrown away by the Taxpayer’s failure to appear on that day.

Link to decision

T & S Nominees Pty Ltd v Chief Commissioner of State Revenue (Costs) [2017] NSWCATAP 104

Last updated: 24 May 2017