Benchmark
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.
 Benchmark

Insurance

Friday, 5 December 2014

  Download PDF
  Follow us
   Search
   View in browser
  
Executive Summary (One Minute Read)
Commissioner of Taxation v MBI Properties Pty Ltd (HCA) - GST - company assessed to increasing adjustment under s135-5 A New Tax System (Goods and Services Tax) Act 1999 (Cth) - appeal allowed
Re Kerbside Waste Services Pty Ltd (VSC) - corporations - oppression by director against member - orders for access to financial records and purchase of director’s shares
Summaries With Link (Five Minute Read)
Commissioner of Taxation v MBI Properties Pty Ltd [2014] HCA 49
High Court of Australia
French CJ; Hayne, Keifel, Gageler & Keane
Taxation - GST - respondent MBI acquired apartments in hotel - each apartment subject to lease between vendor and operator of hotel - on acquiring rights of lessor, MBI became recipient of supply of going concern - Commissioner assessed MBI to GST on basis of it having increasing adjustment under s135-5 A New Tax System (Goods and Services Tax) Act 1999 (Cth) - Commissioner argued continuation of apartment leases resulted in continuation of an input taxed supply of residential premises by way of lease from vendor to operator - GST - increasing adjustment - price - supply of a going concern - held: each apartment lease, as an executory contract, obliged MBI to give operator use and occupation of apartment throughout term of lease in consideration for payment of rent - MBI’s observance of obligation was an intended supply of residential premises by way of lease by MBI to operator which was input taxed under s40-35 - conditions for operation of s135-5 were met - Commissioner correct to assess MBI to an increasing adjustment - appeal allowed.
Commissioner of Taxation
Re Kerbside Waste Services Pty Ltd [2014] VSC 607
Supreme Court of Victoria
Gardiner AsJ
Corporations - oppression - plaintiff sought orders pursuant to Corporations Act 2001 (Cth) arising from alleged wrongful conduct of second defendant in her capacity as the director of first defendant company - held: Court satisfied there had been oppression on the part of director over some considerable period of time - director had continually refused to inform plaintiff about company’s financial affairs - director failed to maintain proper and up to date financial records and attend to payment of company’s creditors - director’s conduct was ‘contrary to the interests of the members as a whole’ or was ‘oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members’ namely the plaintiff - it seemed inevitable that an unpaid creditor would seek to have company wound up in insolvency - situation had been brought about by the conduct of director - orders made giving access to financial records for purpose of valuing shares in company - orders made that plaintiff purchase shares of director for value to be determined by expert.
Re Kerbside Waste Services Pty Ltd

The Cliffside Path
(from A Midsummer Holiday and Other Poems, 1884)
By Algernon Charles Swimburne

Seaward goes the sun, and homeward by the down
We, before the night upon his grave be sealed.
Low behind us lies the bright steep murmuring town,
High before us heaves the steep rough silent field.
Breach by ghastlier breach, the cliffs collapsing yield:
Half the path is broken, half the banks divide;
Flawed and crumbled, riven and rent, they cleave and slide
Toward the ridged and wrinkled waste of girdling sand
Deep beneath, whose furrows tell how far and wide
Wind is lord and change is sovereign of the strand.

Star by star on the unsunned waters twiring down,
Golden spear-points glance against a silver shield.
Over banks and bents, across the headland's crown,
As by pulse of gradual plumes through twilight wheeled,
Soft as sleep, the waking wind awakes the weald.
Moor and copse and fallow, near or far descried.
Feel the mild wings move, and gladden where they glide:
Silence, uttering love that all things understand,
Bids the quiet fields forget that hard beside
Wind is lord and change is sovereign of the strand.

Yet may sight, ere all the hoar soft shade grow brown,
Hardly reckon half the rifts and rents unhealed
Where the scarred cliffs downward sundering drive and drown,
Hewn as if with stroke of swords in tempest steeled,
Wielded as the night's will and the wind's may wield.
Crowned and zoned in vain with flowers of autumn-tide,
Soon the blasts shall break them, soon the waters hide,
Soon, where late we stood, shall no man ever stand.
Life and love seek harbourage on the landward side:
Wind is lord and change is sovereign of the strand.

Friend, though man be less than these, for all his pride,
Yet, for all his weakness, shall not hope abide?
Wind and change can wreck but life and waste but land:
Truth and trust are sure, though here till all subside
Wind is lord and change is sovereign of the strand.

Algernon Charles Swimburne

Subscribe to Benchmark

Did you receive this email from a friend? Subscribe now to receive the daily edition first hand.

Subscribe to Benchmark
Feedback

Do you have comments regarding Benchmark? We're always interested to hear feedback.

Provide feedback
Sent By

AR Conolly & Company
36-38 Young Street Sydney
Sydney NSW 2000

Company Website

If Benchmark is appearing in your junk folder you can fix that here.
Unsubscribe from Benchmark • Update subscription details