Ashton v Monteleone [2010] NSWSC 258 | Case summary

2009/291033 SIMONETTA ASHTON & ANOR v JOSEPH MONTELEONE & ORS JUDGMENT 1 Joseph Monteleone, the first defendant, was the successful bidder at an auction of a property inherited by Simonetta Ashton, the first plaintiff, and her brothers Robertino Serianni, the second plaintiff, and Giampiero Serianni, the third defendant. Mr Monteleone bid on behalf of Always Fresh Fruit and Vegetable Merchants Pty Ltd, the second defendant. His successful bid was $1,060,000. 2 Giampiero Serianni was made bankrupt on 12 August 2009. His trustee in bankruptcy has filed a submitting appearance. Robertino Serianni was made bankrupt on 3 March 2010. His trustee has elected to discontinue the claim and has submitted to any order of the court except as to costs on the cross-claim. 3 Ms Ashton's principal claim to relief is for rectification of the contract for sale of the property to add goods and services tax under A New Tax System (Goods and Services Tax) Act 1999 (Cth) to the purchase price. Always Fresh and Mr Monteleone cross-claim for, principally, a declaration that the purchase price was GST inclusive and for payment to Always Fresh on completion of an amount equal to one eleventh of the purchase price. 4 Ms Ashton and her brothers had each received a letter from their then solicitor, John Allanson, informing them that their accountant had advised that goods and services tax would be payable by them on the sale price and, when fixing their reserve, they should bear in mind that the reserve should include GST. 5 They did not follow that advice. Instead, they instructed their real estate agent, Peter Pagliaro, that the sale would be plus GST. Mr Pagliaro prepared advertising material for the auction which included the following: "Method of Sale: Auction - Over $1,000,000 + GST." 6 Mr Allanson prepared a contract for sale of the property. He thought it was a retail shop. On the front page of the contract for sale three boxes were provided with respect to "GST: Taxable supply", one for "NO", one for "yes in full" and one for "yes to an extent". Mr Allanson had a cross placed in the box for "yes in full". He was unaware that the property comprised a retail shop on the ground floor and residential quarters on the first floor. Had he been aware of this he would have caused a cross to be placed in the box for "yes to an extent." 7 A sale of residential premises to be used predominantly for residential accommodation is input taxed under the GST Act, s 40-65. As such the sale is not a taxable supply under s 9-5 and GST is, relevantly, payable on taxable supplies. 8 On the front page of the contract there also appeared: "Margin scheme will be used in making the taxable supply" followed by one box for "NO" and another box for "yes". Mr Allanson caused a cross to be placed in the box for "NO." 9 Consistent with his letters to Ms Ashton and her brothers, Mr Allanson thought that the purchase price to be inserted in the contract if the auction was successful would be GST inclusive. He did not include any special condition overriding cl 13.2 of the standard terms. It provided: "Normally, if a party must pay the price or any other amount to the other party under this contract, GST is not to be added to the price or amount." 10 Mr Monteleone met with Mr Pagliaro before the auction. He obtained either then or subsequently, but before the auction, a copy of the contract for sale and perused it with the assistance of Bruce Burns the office manager and financial controller of Mr Monteleone and Always Fresh. Mr Monteleone denied receiving a copy of Mr Pagliaro's advertising material. 11 While not in his affidavit, Mr Pagliaro said in cross-examination that he provided Mr Monteleone with a copy of the advertising material and attempted to obtain an offer from him before the auction. Mr Pagliaro said he told Mr Monteleone that the price would be plus GST. He said that Mr Monteleone registered on that occasion. Mr Monteleone said Mr Pagliaro took some particulars at their meeting but he did not receive a number until the morning of the auction. 12 Mr Pagliaro drew up a commercial/industrial sales inspection report and auction agency agreement which was signed by Giampiero Serianni on 18 June 2009. It contained Mr Pagliaro's estimate of a GST inclusive price of $1m - $1.1m. His pre-auction summary that he sent to the auctioneer contained estimated figures but with no reference to the addition of GST. 13 Mr Pagliaro said he was told by Mr Allanson about 1 July 2009 that the property was to be sold plus GST. Mr Allanson had no recollection of this conversation. 14 Mr Pagliaro was mistaken about this. Mr Allanson thought, consistently with his letters to Ms Ashton and her brothers, that for whatever price the property was knocked down at auction it would be GST inclusive. He subsequently had his clients sign a transfer of the property that noted a consideration of $1,060,000 with no addition of GST. He would not have told Mr Pagliaro that the sale was to be plus GST. 15 Mr Pagliaro did not check the contract for sale to see if there was any special condition with respect to GST. 16 Mr Pagliaro said that in the weeks leading up to the auction he had a number of conversations with Giampiero Serianni about establishing a reserve price for the auction. 17 A few weeks prior to the auction Simon Cotter was selected to conduct the auction on 1 August 2009. Mr Pagliaro had also organised another real estate agent, Steven Purcell, to assist him with the administration of the auction. 18 On the morning of the auction Mr Pagliaro met with Ms Ashton and Giampiero Serianni. Mr Robertino Serianni did not attend the auction as he was working. Ms Ashton and Mr Giampiero Serianni said they told Mr Pagliaro that the reserve price was $1.1m plus GST. 19 Each of the siblings gave evidence that they set the reserve price at $1.1m plus GST. None of them was shaken from this evidence in cross-examination. Mr Pagliaro confirmed that his instructions were that the reserve price was $1.1m. He understood that to be plus GST. He spoke with Mr Cotter and informed him of the reserve price of $1.1m. He said Mr Cotter asked whether the property was commercial. Mr Pagliaro informed him it was and that the price was subject to GST. He said Mr Cotter asked whether it would be inclusive or plus GST and Mr Pagliaro said it would be sold plus GST. 20 Mr Pagliaro's evidence on this issue was not shaken in cross-examination. He was criticised for informing a representative of the second mortgagee of the reserve price. The representative placed a bid that increased the previous bid by $100,000. But Mr Pagliaro's evidence in this regard was consistent with the evidence of Ms Ashton and her brothers and was corroborated by Mr Cotter. 21 Mr Cotter confirmed the conversation to which Mr Pagliaro had referred. Further, on his auction sheet with respect to special conditions of note he wrote: "Property is Subject to GST. That is sale price plus GST." 22 Mr Cotter was criticised because he reversed the sequence in which he read from two sheets at the start of the auction. In addition to his auction sheet he had a sheet of standard terms and conditions. In cross-examination he agreed with the sequence in which he read these sheets put to him by counsel. This sequence was inconsistent with the sequence to which he swore on his affidavit. 23 As with Mr Pagliaro it was submitted that Mr Cotter was at risk over his conduct of the auction and that had tainted his evidence. 24 But the high level of corroboration of the oral evidence together with Mr Cotter's contemporary note that the sale price was plus GST and the note on the advertising material that the sale was plus GST lead me to accept the evidence of Mr Pagliaro and Mr Cotter that the auction was conducted on that basis. 25 It was put to them in cross-examination that all that was said by Mr Cotter was that the sale was subject to GST. Their denial was not shaken. 26 A statement that a sale is subject to GST is equivocal. It could mean that the purchase price is GST inclusive or it could mean that the purchase price is plus GST. If the purchase price is plus GST, there is every reason to say so explicitly. If the price is to be GST inclusive there is no point in making the statement that the sale is subject to GST. 27 Mr Cotter said that he commenced the auction by reading his two sheets and then said: "Please note that the property is subject to GST and that the knocked down sale price will be plus GST." 28 Mr Cotter said when a bid was placed he announced the amount of the bid and then said plus GST. When Mr Monteleone made the highest bid of $1,060,000, Mr Cotter said he announced it as $1,060,000 plus GST. Mr Cotter said he recalled looking at the final bidder and calling out his number when his bid was made. 29 Mr Purcell assisted Mr Cotter by recording the bids. He had previously set up for the auction displaying information about the property that included the advertising information prepared by Mr Pagliaro and the contract for sale. He recorded details of those people who wished to bid at the auction and provided them with numbers. 30 Mr Purcell heard Mr Cotter ask Mr Pagliaro whether the sale was a commercial sale and Mr Pagliaro's response that it was. He recalled Mr Cotter asking whether the purchase price was subject to GST but he had then moved away to greet some people attending the auction and did not hear what then transpired. 31 Mr Purcell said, however, that prior to the formal taking of bids, Mr Cotter announced the auction conditions and he said please note that the property is subject to GST and that the knocked down sale price will be plus GST. 32 During the auction Mr Purcell recorded each bid and the bidder's number on a run sheet. The bidding started at $900,000 and was followed by a bid by Mr Monteleone of $925,000. The first bidder then bid $950,000. That was followed by the bid of the representative of the second mortgagee, Dominic Morello, of $1,050,000. Mr Purcell did not record the bids as plus GST as he said he understood that they were to be so and Mr Cotter confirmed each bid adding the words plus GST. 33 Mr Pagliaro gave evidence to the same effect. Before bids were taken he heard Mr Cotter say the property was subject to GST and the knocked down sale price would be plus GST. He recalled as each bid was made Mr Cotter repeated the bid and added the words plus GST. 34 Mr Pagliaro said that when the bid of $1,050,000 was made no further bids were placed. He approached Mr Monteleone and suggested to him that if he wanted the property he should place a bid for another $10,000. He said Mr Monteleone responded that he did not think that $10,000 would get him over the line to buy it. Mr Pagliaro said it was up to him but he would have a chat with the vendors to find out whether they would be prepared to lower the reserve. 35 Mr Pagliaro said it was then that Mr Monteleone placed a bid of $1,060,000 and Mr Cotter repeated the bid and added the words plus GST. 36 When no other bids were placed, Mr Pagliaro went upstairs to speak with Ms Ashton and Giampiero Serianni. He said he explained that the last bid had been placed at $1,060,000 plus GST. He was given instructions to lower the reserve to $1,060,000 plus GST and then sell to the highest bidder. This evidence was confirmed by Ms Ashton and Giampiero Serianni. Mr Pagliaro said he told Mr Cotter that the reserve had been lowered. 37 Mr Cotter said he announced that he had instructions to sell, he would call again and underbidders were welcome to come in. He said he made a first call of $1,060,000, a second call of $1,060,000 and a final call of $1,060,000 plus GST and he said sold for $1,060,000 plus GST. 38 Mr Pagliaro confirmed that this had been said. He said he then approached Mr Monteleone to sign the contract. Mr Pagliaro wrote in the name Joseph Monteleone on behalf of Sun Fresh Pty Ltd including an ACN number. The words Sun Fresh were struck out and the words Always Fresh inserted in their place. Mr Pagliaro entered the price as $1,060,000, the deposit of $106,000, which Mr Monteleone paid by a cheque from Always Fresh, leaving a balance of $954,000. He did not include with the price plus GST. He said he did not know he was required to do so and he believed there was a clause in the contract that would refer to GST. 39 Ernst Hellmann lived in the adjoining property. He was interested in acquiring the property but did not bid at the auction, which he attended to see what happened. In his affidavit he swore that he clearly recalled the auctioneer informing the audience that the purchase price would be sold plus GST. He said the auctioneer repeated this on at least three occasions. 40 In cross-examination, however, Mr Hellmann said he did not hear the auctioneer say plus GST but only that the sale was subject to GST. Mr Hellmann agreed with every proposition put to him in cross-examination. In light of the corroborated evidence of what was said by Mr Cotter, which I have accepted, I reject Mr Hellmann's evidence. 41 Mr Monteleone did not dispute that Mr Cotter may have said the purchase price was plus GST. He said he did not recall or he did not hear. He said he was outside on the road during part of the auction and with traffic noise he did not hear what was being said. Mr Cotter said it was possible that Mr Monteleone left the auction area in the course of the bidding process. Mr Pagliaro said that Mr Monteleone was outside for part of the time. 42 Mr Monteleone said he was outside on the footpath when the auction commenced speaking to people he knew. He could not identify any of them. He said "Rock, Joe whoever". He could not say how many were the persons with whom he spoke. He did not remember whether one of them was Joe and another was Rock. Then he denied one was Joe. He could have been Tom, Dick or Harry. 43 Mr Monteleone said that when he entered the auction room the first bid had just been made. He did not hear the introduction by Mr Cotter. Mr Monteleone then said that when he walked in the first thing heard was Mr Cotter saying: "Do I hear an opening bid?" Mr Monteleone said that when the bidding reached $1,050,000 he left and went back outside on to the footpath thinking the price was too much. 44 In his affidavit he had said he began talking to various people he knew. In cross-examination he could not recall who they were. He said most of them heard the bid because they went out of the auction room with him. He said that once he saw anyone, he knew that person and that was why he swore in his affidavit that he began talking to various people he knew. 45 Then Mr Monteleone volunteered that Rock was still outside when he left the auction room. It was then on the footpath that he said Mr Pagliaro talked him up $10,000. Mr Monteleone said that he remained on the footpath while Mr Pagliaro went back inside. He said he heard the auctioneer from the footpath calling for more bids and he heard Mr Pagliaro making a bid on his behalf. 46 Mr Monteleone then volunteered that he raised his hand demonstrating to the auctioneer that he was the registered bidder. He denied that he heard Mr Cotter say that the bid was then $1,060,000 plus GST and he denied that he heard the property being knocked down. He had a line of sight to Mr Cotter and he was satisfied that he had received his bid. He said he had held up his number. 47 Mr Monteleone said he heard Mr Cotter calling for more bids just before Mr Pagliaro made a bid on his behalf. He heard the auctioneer say the property was on the market. Then he changed his answer and said that he did not hear that but he knew that that was what was going on. 48 It was put to Mr Monteleone that Mr Cotter said: "I can confirm that we are currently at $1,060,000 plus GST". Mr Monteleone said he may have said that. He did not hear him. When he was inside the room Mr Monteleone does not deny that Mr Cotter said plus GST on various occasions. He said he did not hear. Yet he was inside the room. It was put to him that Mr Cotter made it clear to each bidder that the bid was plus GST. Mr Monteleone said if he did, which he did not recall, he never took any notice. 49 Mr Cotter said that Mr Monteleone was standing in front of him when he made his successful bid. He was not on the footpath. Mr Cotter said he would not take a bid unless he could acknowledge the bidder's card. 50 Mr Purcell said the same thing. It was put to him that Mr Monteleone was outside the room when the bid was made and Mr Pagliaro made the bid for him. Mr Purcell denied this and said the bidder's card must be shown after taking the bid. The only person holding the bidder's card is the bidder. He denied that it was Mr Pagliaro who showed the bidder's card. 51 I accept the evidence of Mr Cotter, Mr Pagliaro and Mr Purcell that Mr Cotter announced that the purchase price would be plus GST at the beginning and during the course of the bidding. I reject Mr Monteleone's evidence that he did not hear or did not recall Mr Cotter saying plus GST after each bid including bids made by him. I reject his evidence that he was on the footpath when his successful bid was placed. 52 Mr Monteleone was an unsatisfactory witness who could not substantiate the evidence to which he had deposed in his affidavit. He was prepared to say anything that he thought would advance his case. His evidence was marked by implausibility. 53 I find that Mr Cotter knocked down the property to Mr Monteleone for $1,060,000 plus GST. I find that Mr Monteleone was well aware that he purchased the property for $1,060,000 plus GST. 54 Mr Allanson was presented with a transfer of the property in which the consideration was stated to be $1,060,000. Consistently with his belief that the sale had been GST inclusive, he had his clients Ms Ashton and her brothers sign the transfer. 55 Ms Ashton explained that she signed the transfer without mention of GST as she believed that the GST would be paid straight to the Commissioner of Taxation and not to her and her brothers. Giampiero Serianni said he thought the amount would be paid to the State. Robertino Serrianni was not cross-examined on this issue. 56 The witnesses were cross-examined to the effect that they understood that the purchaser would pay GST as a result of their understanding of the GST Act. The purpose of the cross-examination was to ground the submission that any common intention was based upon an understanding of the GST Act and not upon the price stated in the contract for sale. 57 The witnesses were not lawyers and could not be expected to have a proper understanding of the GST Act sufficient to ground that belief. Furthermore, the answers were, in many cases, equivocal acknowledging merely that GST was payable under provisions of the GST Act. 58 Daren James Anderson succeeded Mr Allanson as the solicitor for Ms Ashton and Robertino Serianni. He had been the solicitor for the second mortgagee. He accompanied Mr Morello to the auction. He did not read the contract. He did not regard himself as being at the auction representing the second mortgagee. Rather, he regarded himself as accompanying Mr Morello and it was he who was the representative of the second mortgagee. 59 Mr Anderson took no steps to ascertain whether there was a special condition imposing an obligation on the purchasers to pay GST. Until his firm took over the file from Mr Allanson he was not aware that there was any dispute in relation to GST. 60 Mr Anderson said he was careful not to give any evidence about what occurred at the auction as his firm was acting for Ms Ashton and Robertino Serianni. It was put to him that if he had given evidence his version would have been inconsistent with Ms Ashton's case. He responded: "If I were to give my version it would be entirely consistent with the plaintiffs' case." 61 Mr Anderson was taxed with the absence of an affidavit from Mr Morello. He said what was said at the auction was not challenged by Mr Monteleone and further witnesses could have been called to say the same thing. 62 When it was put to Mr Anderson that the auctioneer had said that the property was subject to GST he disagreed and confirmed what the other witnesses had said. The auctioneer said that the knocked down price would have GST added to it and he recalled the auctioneer saying that on at least three, perhaps more, occasions throughout the course of the auction. 63 It was submitted on behalf of Mr Monteleone that a Jones v Dunkel (1959) 101 CLR 298 inference should be drawn from the failure to call Mr Morello. That rule only applies where a party is required to explain or contradict something. In the absence of evidence requiring an answer the failure to call evidence has no probative significance (Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at 142-143). 64 Furthermore, the rule does not require a party to give cumulative evidence. It does not compel time to be wasted in calling unnecessary witnesses (Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at 120). 65 In Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329, Sheller JA with whom the other members of the court agreed analysed the authorities with respect to rectification. His Honour concluded that a deed poll should be rectified. McLelland A-JA at 345 added the following: "In general, the remedy of rectification of an instrument is available where it is established by clear and convincing proof that at the time of execution of the instrument the relevant party or parties as the case may be had an actual intention (if more than one party, a common intention) as to the effect which the instrument would have which was inconsistent with the effect which the instrument as executed did have in some clearly identified way. In this context "effect" means the legal and factual operation of the instrument according to its true construction, but does not include legal or factual consequences of the operation of the instrument of a more remote, or collateral, kind (for example, its liability to stamp duty)." 66 In this case the clear and common intention of Ms Ashton and her brothers was that the purchasers should pay GST in addition to the price stated in the contract for sale. That intention persisted up to the execution of the counterparts. There is a disconformity between that common intention and the effect of the contract for sale. The instrument should have had the effect of requiring Always Fresh to pay GST in addition to the price. The contract for sale was inconsistent with that effect. The disconformity can be identified clearly. 67 Having rejected Mr Monteleone's evidence that he did not hear or did not recall Mr Cotter stating that the price would be plus GST, I find that his intention was common to that of Ms Ashton and her brothers and that intention continued to the time of execution of the contract for sale. 68 Prima facie Ms Ashton is entitled to rectification. She seeks an order that the price in the contract for sale be replaced by "$1,060,000.00 + GST." 69 In addition, Ms Ashton seeks a declaration stating the amount payable upon completion of the contract excluding adjustments for rates, water usage, registration fees and land tax and a declaration that she must give Always Fresh a tax invoice in a stated amount. 70 Section 9-80 of the GST Act provides that if a supply is partly a taxable supply and partly a supply that is GST-free or input taxed, the value of the part of the actual supply that is a taxable supply is the proportion of the value of the actual supply that the taxable supply represents. A formula for determination of the value of the actual supply is given in s 9-80(2). 71 The parties proceeded upon the basis that the price for the taxable supply of the commercial portion of the premises was $773,800, a capitalised value of the rent received for that portion of the premises. 72 GST is payable at 10% of the value of a taxable supply under s 9-70 of the GST Act. The value of a taxable supply is 10/11ths of the price in terms of s 9-75. Thus the value of the taxable supply of the commercial portion of the premises is $703,454 and the GST on the taxable supply is $70,345. 73 Thus on completion of the rectified contract for sale, on the figures upon which the parties conducted the case, the balance of the purchase price of $945,000 together with GST of $70,345 would be payable. That is the figure for which Ms Ashton seeks a declaration. 74 Ms Ashton seeks a declaration that she must give the purchaser a tax invoice for $70,345. But a tax invoice for a taxable supply must set out the price of the supply in terms of s 29-70(1) of the GST Act. Thus, on the figures that the parties used, Ms Ashton should provide Always Fresh with a tax invoice in the amount of $773,800. 75 Mr Monteleone and Always Fresh in their amended defence raised the allegation that the sale of the property was not a taxable supply because Ms Ashton was not registered for GST purposes and was not required to be registered. 76 A taxable supply is defined in s 9-5 of the GST Act as follows: "You make a taxable supply if: (a) you make the supply for consideration; and (b) the supply is made in the course or furtherance of an enterprise that you carry on; and (c) the supply is connected with Australia; and (d) you are registered, or required to be registered. However, the supply is not a taxable supply to the extent that it is GST-free or input taxed." 77 The estate from which Ms Ashton and her brothers inherited was registered for GST purposes. But the property was transferred to Ms Ashton and her brothers as tenants in common in equal shares in 2005. The property was leased by Ms Ashton and her brothers until early 2008. It has remained vacant ever since. 78 There is no evidence that Ms Ashton was registered nor that she was required to be registered on 1 August 2009. Section 23-5 of the GST Act requires a person to be registered if carrying on an enterprise and the GST turnover meets the registration turnover threshold. The registration turnover threshold is $100,000 as prescribed in s 23-15(2)(a). 79 Ms Ashton is not entitled to the declarations she seeks unless there is a taxable supply in relation to the commercial portion of the premises at the price upon which the parties proceeded. Whether or not there is a taxable supply I think Ms Ashton is entitled to rectification of the contract for sale to accord with the common intention of the parties. 80 I am not prepared to dismiss Ms Ashton's claim to declaratory relief on the basis of alleged lack of proof. The parties are entitled to have a just, quick and cheap resolution of the real issues between them under s 56 of the Civil Procedure Act 2005. 81 Ms Ashton comes to equity and must do equity. In my view the appropriate course is for me to order her to apply to the Commissioner of Taxation within 14 days for a private indirect tax ruling in terms of the Taxation Administration Act 1953 (Cth), Sch 1, s 359-5 as to whether or not the contract for sale includes a taxable supply and, if so, the price of it. 82 By their amended first cross-claim, Always Fresh and Mr Monteleone claim that pursuant to cl 13.8 of the contract for sale, on completion Ms Ashton must pay them 1/11th of the price of $1,060,000. Clause 13.8 was in the following terms: "If this contract says this sale is a taxable supply in full and does not say the margin scheme applies to the property, the vendor must pay the purchaser on completion an amount of one-eleventh of the price if- 13.8.1 this sale is not a taxable supply in full; or 13.8.2 the margin scheme applies to the property (or any part of the property )." 83 As already indicated the contract for sale indicated that it was a taxable supply in full and it was not a taxable supply in full. 84 If Always Fresh and Mr Monteleone are correct in this submission and GST is payable on portion of the supply it will mean that Ms Ashton must pay the Commissioner of Taxation $70,345 and pay Always Fresh or Mr Monteleone $96,363. That is an unlikely result. 85 In my view cl 13.8 of the contract for sale has a perfectly logical function to perform that does not arise in this case. 86 It applies if the contract says it is a taxable supply in full and the sale is plus GST. In that case GST would be added to the purchase price. If the purchase price was $1,060,000 its value would be $963,636 calculated at 10/11ths of the price. The GST to be added to the purchase price would be $96,363 calculated at 10% of the value. On completion the purchaser would pay $1,156,363. 87 If the sale was not a taxable supply in full, the purchaser would have paid $96,363 too much. In those circumstances, the obligation upon the vendor to pay the purchaser 1/11th of the purchase price strips the overpayment from the vendor and restores the purchaser to the correct position. 1/11th of the price is $96,363, the amount of the overpayment. 88 I will dismiss the amended statement of cross-claim. The other relief claimed falls with my rejection of the evidence of Mr Monteleone. 89 I will rectify the contract for sale by substituting for the price "$1,060,000 + GST." 90 I will order Ms Ashton to apply to the Commissioner of Taxation within 14 days for a private indirect tax ruling in terms of the Taxation Administration Act, Sch 1, s 359-5 as to whether or not the contract for sale includes a taxable supply and, if so, the price of it. 91 I will stand the further consideration of the statement of claim over until the Commissioner of Taxation has made a private indirect tax ruling. I will consider the question of costs then. 92 I direct the parties to bring in short minutes of order reflecting these reasons.

Ashton v Monteleone

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Judgment (11 paragraphs)

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Legislation Cited (2)

Cases Cited (6)

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