Banfirn Pty Ltd v Chief Commissioner of State Revenue

Supreme Court of NSW|2019-08-12|Before: Payne J

Judgment

PAYNE J: This is a case commenced by Banfirn Pty Ltd ("Banfirn") challenging the following assessments of payroll tax, penalties and interest issued by the Chief Commissioner under the Payroll Tax Act 2007 (NSW): [1] 1. 1 July 2012 to 30 June 2013 in the amount of $38,151.79; [2] 2. 1 July 2013 to 30 June 2014 in the amount of $107,125.77; [3] and 3. 1 July 2014 to 30 June 2015 in the amount of $151,954.14. [4]
Banfirn applied for a review of the respective assessments pursuant to s 97(1)(a) of the Taxation Administration Act 1996 (NSW). The proceedings in this Court are an "appeal" for the purposes of s 19(2) of the Supreme Court Act 1970 (NSW) and s 97(4) of the Taxation Administration Act. An appeal under these provisions is a de novo review not limited to the materials before the Chief Commissioner: Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 245 CLR 446; [2011] HCA 41 at [12]-[22]; Grain Growers Ltd v Chief Commissioner of State Revenue [2015] NSWSC 925 at [7].
Banfirn bears the onus of proving its case on the balance of probabilities: Taxation Administration Act, s 100(3).

Relevant facts

Banfirn was a group member, pursuant to the provisions in Part 5 of the Payroll Tax Act, with each of Linsari Pty Ltd ("Linsari") and Kalnosa Pty Ltd ("Kalnosa"). [5] No challenge is made to that grouping decision. Banfirn accepts that the consequence of ss 81(1) and 81(3)(a) of the Payroll Tax Act is that in the event the assessments based on the contracts with Linsari and Kalnosa are correct, the assessments are unpaid and Banfirn is jointly and severally liable to pay the amounts identified in the assessments to the Chief Commissioner.

Labour Hire & Sub-Contract Agreement

The Labour Hire & Sub-Contract Agreement between Banfirn and each of Linsari and Kalnosa provides, relevantly: "THIS AGREEMENT is made this 18th day of January 2013 between BANFIRN PTY LTD (A.C.N. 147 357 248) t/a Nuform Constructions (NSW) (Nuform) and LINSARI PTY LTD (A.C.N 160 603 163) (Linsari). WHEREAS A. Nuform has secured and will continue to secure formwork sub-contracts (sub-contracts); B. Linsari is capable of supplying labour to Nuform to enable it to complete such sub-contracts. … 2. RESPONSIBILITIES: 2.1 Linsari agrees to supply labour to Nuform in such numbers and with workers possessing such necessary skills so as to enable Nuform to meet its obligations under its sub-contracts. … 2.3 Linsari will ensure that all employees undertaking work on the construction sites will undertake such work in a competent and tradesman-like manner and in accordance with the requirements of each sub-contract between Nuform and the builder. Linsari will indemnify Nuform for damages and delays arising from work performed which is not in accordance with such requirements and which is not completed within the stipulated period as required by each sub-contract. … 3. FEES AND CHARGES & RATES: 3.1 Nuform will pay to Linsari $39.00 (plus GST) per square metre of formwork (surface contact area) formed on specific or special projects, or any such other rate that may be agreed from time to time. Nuform will receive from the builder for each sub-contract it undertakes, a contract sum and undertakes to pay Linsari for work performed for Nuform to enable it to complete such sub-contract."
Matters contained in that contract relevant to the decision I am asked to make are: 1. Recitals A and B record, respectively, that Banfirn trading as "Nuform Constructions (NSW)" ("Nuform") has secured and will continue to secure formwork sub-contracts [8] and Linsari/Kalnosa is capable of supplying labour to Banfirn to enable it to complete such sub-contracts. 2. Clause 2.1 provides that Linsari/Kalnosa agrees to supply labour to Banfirn in such numbers and with workers possessing such necessary skills so as to enable Banfirn to meet its obligations under its sub-contracts. 3. Clause 2.3 provides that Linsari/Kalnosa will ensure that all employees undertaking work will do so in a competent and tradesman-like manner and in accordance with the requirements of the sub-contract between Banfirn and the builder. Mr Hale SC emphasised that this obligation required Linsari/Kalnosa to perform the formwork required by the head contract to the standard required by that head contract. Linsari/Kalnosa were each liable to indemnify Banfirn for damages and delays arising from work performed which was not in accordance with the requirements of the head contractor. 4. Clause 3.1 provides the method by which payment from Banfirn to Linsari/Kalnosa will be calculated. Mr Hale SC emphasised that the payment formula is that Banfirn will pay to Linsari/Kalnosa $39.00 (plus GST) per square metre of formwork (surface contact area) formed on specific or special projects, or any such other rate that may be agreed from time to time.

Management Labour Agreement

The Management Labour Agreement between Banfirn and each of Linsari and Kalnosa provides, relevantly: "THIS AGREEMENT is made this 18th day of January 2013 between BANFIRN PTY LTD (A.C.N. 147 357 248) t/a Nuform Constructions (NSW) (Nuform) and LINSARI PTY LTD (A.C.N 160 603 163) (Linsari). WHEREAS A. Nuform has secured and will continue to secure formwork sub-contracts (sub-contracts); B. Linsari is capable of supplying Nuform with management and administrative services to enable it to complete such sub-contracts. … 2. RESPONSIBILITIES: Linsari agrees to supply management and administrative services to Nuform with professional staff possessing such necessary skills so as to enable Nuform to meet its obligations under its sub-contracts. … 2.3 Linsari will ensure that all employees undertaking work will undertake such work in a competent and professional manner and in accordance with the requirements of each sub-contract between Nuform and the builder. Linsari will indemnify Nuform for damages and delays arising from work performed which is not in accordance with such requirements and which is not completed within the stipulated period as required by each sub-contract. 3. FEES, CHARGES & RATES: 3.1 In consideration for Linsari providing Nuform with necessary administration services and facilities, Nuform agrees to pay to Linsari $9.00 + GST per square metre of formwork (surface contact area) formed on specific or special projects, or any other such rate that may be agreed to from time to time."
Matters contained in that contract relevant to the decision I am asked to make are: 1. Recitals A and B record, respectively, that Banfirn trading as Nuform has secured and will continue to secure formwork sub-contracts and Linsari/Kalnosa is capable of supplying Banfirn with management and administrative services to enable it to complete its sub-contracts. 2. Clause 2 provides that Linsari/Kalnosa agrees to supply management and administrative services to Banfirn with professional staff possessing such necessary skills so as to enable Banfirn to meet its obligations under its sub-contracts. 3. Clause 2.3 provides that Linsari/Kalnosa will ensure that all employees undertaking work will do so in a competent and professional manner and in accordance with the requirements of the sub-contract between Banfirn and the builder. 4. Clause 3.1 provides the method by which payment from Banfirn to Linsari/Kalnosa will be calculated. Mr Hale SC emphasised that the payment formula is that Banfirn agrees to pay to Linsari/Kalnosa $9.00 (plus GST) per square metre of formwork (surface contact area) formed on specific or special projects, or any other such rate that may be agreed to from time to time.
Linsari's and Kalnosa's only income, in the periods the subject of the assessments, was earned from their respective relationships with Banfirn.

Banfirn's submissions

Banfirn's central proposition is simple to state. It was submitted that each agreement between Banfirn on the one hand, and Linsari and Kalnosa on the other, essentially concerned the provision and delivery of a "specific good" [9] rather than the provision of labour, thereby taking the contracts outside of s 37(1) of the Payroll Tax Act.
Banfirn submitted that the correct characterisation of each agreement with Linsari and Kalnosa was as one requiring provision of formwork paid for on a per metre basis. Linsari and Kalnosa were not, it was submitted, required by the contracts to procure the services of contractors for Banfirn.
Banfirn accepted that labour was procured by Linsari and Kalnosa under the agreements but characterised that as "ancillary to the provision of the formwork". It was said that by reason of the absence of control by Banfirn of staff provided by Linsari and Kalnosa it should be concluded that Linsari and Kalnosa did not procure the services of contractors "for" Banfirn within the meaning of s 37 of the Payroll Tax Act.

Legislative provisions

Division 8 of Part 3 of the Payroll Tax Act 2007 (NSW) provides, relevantly: [10] Division 8 Employment agents … 37 Definitions (1) For the purposes of this Act, an employment agency contract is a contract, whether formal or informal and whether express or implied, under which a person (an employment agent) procures the services of another person (a service provider) for a client of the employment agent. (2) However, a contract is not an employment agency contract for the purposes of this Act if it is, or results in the creation of, a contract of employment between the service provider and the client. (3) In this section: contract includes agreement, arrangement and undertaking. 38 Persons taken to be employers For the purposes of this Act, the employment agent under an employment agency contract is taken to be an employer. 39 Persons taken to be employees For the purposes of this Act, the person who performs work for or in relation to which services are supplied to the client under an employment agency contract is taken to be an employee of the employment agent. … 41 Liability provisions Subject to section 42, if an employment agent under an employment agency contract: (a) by arrangement procures the services of a service provider for a client of the employment agent, and (b) pays payroll tax in respect of an amount, benefit or payment that is, under section 40, taken to be wages paid or payable by the employment agent in respect of the provision of those services in connection with that contract, no other person (including any other person engaged to procure the services of the service provider for the employment agent's client as part of the arrangement) is liable to pay payroll tax in respect of wages paid or payable for the procurement or performance of those services by the service provider for the client.
The legislative background to the employment agency contract provisions of the previous legislation (the Pay-roll Tax Act 1971 (NSW)) was considered by White J in Freelance Global Ltd v Chief Commissioner of State Revenue [2014] NSWSC 127 at [143]-[148]. Relevantly, his Honour there set out, at [146], what was said by the Minister for Employment and Minister for Finance in 1985 when introducing the Bill that became the Payroll Tax (Amendment) Act 1985 (NSW): [11] "I turn now to the subject of tax avoidance. It is a most unfortunate fact that in every walk of life there is a small minority of people who, by their unscrupulous behaviour, spoil things for everyone else. Thus it is that there has been a significant increase over the years in the use of artificial schemes and contrived arrangements by taxpayers attempting to avoid their liabilities to taxation. This has occurred in the area of pay-roll tax, just as it has in other more celebrated fields such as income tax. This bill includes a number of measures which will catch schemes designed to avoid liability for pay-roll tax by severing the employer-employee relationship. Such arrangements have included the use of so-called contractors to replace wages staff. Typical of the situations that are known to exist and are the target of the legislation is the employer who, by arrangement with an employee, enters into a contract for service with the employee's family trust, partnership or company for the provision of the employee's services. The employee then performs the services for the employer but his salary is paid to the trust, partnership or company, resulting in the avoidance of pay-roll tax by the employer. Certain contracts will be exempted from liability for pay-roll tax, including contracts in excess of $500,000 where the contractor would need to hire staff and would therefore be liable for pay-roll tax. Bona fide independent contractors will not be caught by the legislation. A second are [sic] of avoidance that is dealt with by this bill is the use of employment agents. Such agents are being used increasingly by employers, particularly in the recruitment of professional people and also for temporary staff. In some cases it has been claimed, by virtue of the arrangements entered into, that the person whose services are provided is employed by neither the contract agent nor the client. The arrangements entered into have sometimes also involved the use of trusts, partnerships or companies. The legislation will confirm that payments by an employment agent made in respect of the provision of services to a client of the agent are liable for payroll tax."
With effect from 1 January 1988, the legislation was amended (see the Payroll Tax (Amendment) Act 1987 (NSW)), such that the liability for payroll tax for workers engaged through an employment agent (as defined) was borne by the client "using the worker's services", rather than by the employment agent. However, there was a subsequent amendment introduced by the State Revenue Legislation (Miscellaneous Amendments) Act 1998 (NSW). The change in 1988 in NSW again placed liability for payroll tax on the employment agent rather than the client. At the time, the Minister said: [12] "The Pay-roll Tax Act currently provides that wages paid to temporary staff provided through employment agents are taxable in the hands of the end user of the labour services. An administrative arrangement allows the agent to take responsibility for the tax but only if the end user agrees. Traditionally, the majority of temporary staff have been accepted as common law employees of the end user. Some are deemed to be employees under the relevant contract provisions. The relevant contract provisions are anti-avoidance provisions designed to bring to tax wages paid to persons who are, for all intents and purposes, performing duties similar to those of employees. Recent judicial pronouncements in other jurisdictions have confused the issue of liability to the point that employers and employment agents are unsure of their obligations. The uncertainty has prompted refund claims by employment agents which are likely to reach some $200 million in New South Wales alone. Those claims represent windfall gains for employment agents as the payroll tax would already have been passed on to the clients. To secure the traditional tax base and make taxpayers [sic] obligations and point of liability absolutely clear, the bill introduces specific provisions relating to payments to workers engaged through employment agents. The agent will now be liable for payroll tax, bringing New South Wales into line with Victoria, Western Australia, South Australia and Queensland. The other jurisdictions do not have specific agency provisions."

Consideration

Neither party addressed the appropriate principles of statutory construction. I propose to proceed on the principles identified in Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; [2012] HCA 55 at [39], by the High Court, quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ): "This Court has stated on many occasions that 'the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself." (Footnote omitted.)
I will proceed on the basis that, although statutory construction must begin with a consideration of the text, the statutory text must be considered in its context and that context includes legislative history and extrinsic materials.
The question before me is whether the Labour Hire & Sub-Contract Agreements and Management Labour Agreements were "employment agency contracts" within the meaning of s 37 of the Payroll Tax Act. Expressed another way, were the Labour Hire & Sub-Contract Agreement and the Management Labour Agreement contracts under which Linsari and Kalnosa procured the services of another person for a client of Linsari and Kalnosa, namely Banfirn?
The effect of the provisions in Division 8 of Part 3 of the Payroll Tax Act is to impose payroll tax on "employment agents" who provide the services of third parties to their "clients".
Banfirn's proposition that each agreement essentially concerns the provision and delivery of a "specific good" as distinct from the provision of services, thereby taking the contracts outside of s 37(1) of the Payroll Tax Act, should be rejected.
In Securecorp (NSW) Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 744 I addressed the history of s 37(1) of the Payroll Tax Act at some length. The relevant provisions were also considered by White J in Freelance Global Ltd v Chief Commissioner of State Revenue [2014] NSWSC 127 and UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852, by Kunc J in JP Property Services Pty Limited v Chief Commissioner of State Revenue [2017] NSWSC 1391 and by Ward CJ in Eq in both H R C Hotel Services Pty Ltd v Chief Commissioner of State Revenue [2018] NSWSC 820 and Bayton Cleaning Co Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 657.
The relevant propositions which emerge from the text of the statute in its context, that context including legislative history and extrinsic materials, have earlier been identified in other decisions of this Court: 1. The employment agency provisions were not intended to apply only to employment agents or labour hire firms as those expressions are said to be generally understood. That appears from the text of s 3C (the statutory predecessor to s 37) and s 37 and from the language used in other legislation at the relevant times regulating the licensing of employment agents. [13] 2. The word "procure" in s 37(1) of the Payroll Tax Act means more than facilitate or enable and requires that the employment agent cause the services of a contract worker (or service provider) to be provided to the employment agent's client, with the expenditure of care or effort by the employment agent. 3. Section 37(1) of the Payroll Tax Act should be construed as referring to a contract under which a person (the employment agent) procures the services of another person "in and for the conduct of the business of the employment agent's client". [14] 4. A number of verbal formulations have been offered about the identity of the contracts to which s 37(1) applies as being contracts: 1. where the services are provided by individuals "who would comprise, or who would be added to, the workforce of the client for the conduct of the client's business"; [15] 2. to help the client "conduct its business in the same way, or much the same way, as it would do through an employee"; [16] and 3. where the service providers are "working in the client's business". [17] 1. I agree with Ward CJ in Eq that the question of whether a service provider is working "in and for" the conduct of the client's business can involve a fact-sensitive analysis with a focus on the manner in which the services are provided for the client. [18]
In the present case I have come to a clear view that the Labour Hire & Sub-Contract Agreement and the Management Labour Agreement are each contracts under which Linsari and Kalnosa procured the services of qualified people to complete formwork for a client, namely Banfirn.
Each of those contracts was an "employment agency contract" within the meaning of s 37(1) of the Payroll Tax Act. This is for the following reasons: 1. each contract clearly provided for Linsari and Kalnosa to supply labour (cl 2.1 of the Labour Hire & Sub-Contract Agreement) or staff (cl 2 of the Management Labour Agreement) to work in the business of Banfirn; 2. Linsari and Kalnosa procured, in the sense of caused, the supply of labour and staff to Banfirn at Banfirn work-sites and caused those labourers and staff to provide services "in and for the conduct of the business of [Banfirn]"; 3. those labourers and staff supplied by Linsari and Kalnosa to Banfirn carried out an essential function of Banfirn's business by completing the formwork Banfirn had contracted with the various head contractors to supply; and 4. those labourers and staff comprised the workforce of Banfirn for the conduct of Banfirn's business. On the evidence before me, the labourers worked on Banfirn work-sites, the work was performed with apparent regularity and continuity and the work was of a kind done in the ordinary conduct of Banfirn's business.
In the case of the Labour Hire & Sub-contract Agreement, by cl 2.1 of that agreement, each of Linsari and Kalnosa agreed to and did "supply labour to [Banfirn] in such numbers and with workers possessing such necessary skills so as to enable [Banfirn] to meet its obligations under its sub-contracts". The contract could scarcely be clearer in demonstrating that the Labour Hire & Sub-contract Agreement was a contract "under which [Linsari/Kalnosa] procures the services of another person … [the labourers] … for a client [Banfirn] of… [Linsari/Kalnosa]".
In the case of the Management Labour Agreement, by cl 2 of that agreement, each of Linsari and Kalnosa agreed to "supply management and administrative services to [Banfirn] with professional staff possessing such necessary skills so as to enable [Banfirn] to meet its obligations under its sub-contracts". I am satisfied that the Management Labour Agreement was a contract "under which [Linsari/Kalnosa] procures the services of another person … [the professional staff] … for a client [Banfirn] of … [Linsari/Kalnosa]".
I reject Banfirn's reliance on the mechanism adopted in each contract for determining the amount payable by Banfirn to Linsari and Kalnosa (cl 3.1 in each agreement) as demonstrating that each agreement essentially concerned the delivery of a "specific good".
The premise of Banfirn's submission is not correct. Clause 2.1 of the Labour Hire & Sub-contract Agreement and cl 2 of the Management Labour Agreement identify what Linsari and Kalnosa agreed to supply to Banfirn, namely, the labour and services of people to enable Banfirn to complete its obligations to supply formwork to the head contractors. The mechanism adopted in each contract for determining the amount payable by Banfirn to Linsari and Kalnosa does not have the consequence that each of Linsari and Kalnosa did not agree to and "supply labour to [Banfirn] in such numbers and with workers possessing such necessary skills so as to enable [Banfirn] to meet its obligations under its sub-contracts". To the contrary, the payment mechanism underlines my conclusion that Linsari and Kalnosa were contractually obliged to supply sufficient skilled labour to Banfirn to permit Banfirn to meet its formwork obligations to the relevant head contractor.
These conclusions are sufficient to deal with Banfirn's case. As I have earlier explained, that case was limited to the proposition that the contracts essentially concerned the provision and delivery of a "specific good" rather than the provision of labour.
An argument indistinguishable from the one put by Banfirn in this case has been rejected in two earlier decisions of the Court: Bayton at [105] and HRC Hotel Services at [153]. [19] Contrary to Mr Hale SC's formal submission that her Honour's decisions were wrong and should not be followed, I regard the decisions of Ward CJ in Eq as plainly correct.
In HRC Hotel Services, the plaintiff (who had cleaning contracts with some major hotel groups) paid fees to Platinum Group and Platinum for the provision of additional staff to assist it to procure the services it had agreed to supply to those major hotel groups. It was argued that payments to Platinum Group and Platinum were based on the number of rooms cleaned and thus the contract was one to produce the required result rather than a contract for the supply of services.
After a detailed consideration of the evidence and the parties' submissions Ward CJ in Eq concluded: "[152] It is clear from the evidence of the plaintiffs that in order to perform the obligation of cleaning and servicing hotel rooms to the requisite standard (i.e., to produce the required result under the hotel client contracts) it was necessary from time to time for HRC/Housekeeping Solutions to procure the services of additional housekeeping staff under the sub-contracting arrangements in place with the Platinum group companies and/or SWCA. The fact that those services were procured for the purpose of performance of the obligations under the hotel client contracts (and without which services those obligations could not be fulfilled) means in my opinion that the hotel contracts are ones "under which" the services were procured in the sense of the services being required to be supplied for the purposes of those contracts. [153] In my opinion the evidence also compels the conclusion that the services were procured "for" the hotel clients' businesses in the sense of "in and for the conduct of those businesses". True it is that payment under the hotel client contracts was structured by reference to room "credits". However, in a practical sense the housekeeping staff did form an addition to the hotel's workforce - they not only wore the hotel branded uniform, but they also liaised with guests and other hotel staff in the services provided by way of the servicing and cleaning of hotel rooms and they were entitled to make use of the hotel staff dining rooms during lunch breaks and the like. On the evidence given by Ms Kelly in cross-examination, it is difficult to see how it would be apparent to the ordinary hotel guest that there was any distinction between, say, a hotel employee responsible for the stocking of items in the hotel room, or answering calls placed to the hotel's housekeeping telephone number, and a member of the additional staff sourced from Platinum/SWCA performing services in the cleaning of the guest rooms on the hotel premises."
To like effect, Kunc J in JP Property Services described an argument very similar to the one advanced here as involving a distinction which was "not exclusively binary": "[67] The choice [between procuring results and procuring services] is not exclusively binary. In my view, the contracts or arrangements are for the provision of services. To the extent that they can be categorised as contracts for the provision of a result, this does not detract from their character as contracts for the provision of services insofar as those services are procured in order to produce a result … [68] … In this case it is clear that all of the contracts in question require services or work to be done - irrespective of whether they can also be categorised as being contracts to produce a result. Most, if not all, contracts for the provision of services could also be described as contracts to achieve a result."
In Bayton at [105] Ward CJ in Eq held: "I remain of the view that the "results" test (for which the plaintiff advocated in HRC Hotel Services) is not helpful in this context in that the fact that a contract might provide for the provision of a particular outcome or result says little as to whether the provision of services for the purpose of achieving or producing that outcome or result is "in and for the conduct" of the relevant client's business."
Banfirn accepts that I would follow Ward CJ in Eq in HRC Hotel Services and Bayton. Mr Hale SC, however, submitted that those cases were distinguishable from this case. Mr Hale SC very properly accepted that this was a difficult argument for him to succeed on. I agree. Banfirn's case is founded on the same factual premises as were rejected in HRC Hotel Services and Bayton. As in Bayton and HRC Hotel Services, payment under the relevant contracts was structured by reference to results, here formwork completed. For reasons relevantly indistinguishable from those given at [27] in the present case, the contracts in HRC Hotel Services and Bayton were held to be "employment agency contract(s)" within s 37(1) of the Payroll Tax Act. Banfirn does not rely on any other challenge to the assessments.

Orders

It follows that the orders of the Court are: 1. Summons dismissed. 2. Plaintiff to pay the costs of the defendant as agreed or assessed.

Endnotes

Although there was some confusion at the hearing about this matter, it appears that an earlier assessment for the period from 1 July 2011 to 30 June 2012 in the amount of $3,558.53 was not the subject of challenge by Banfirn. In any event, I was informed by Senior Counsel for Banfirn that by reason of discussions between the parties I could ignore that assessment for the purposes of this judgment.
This was an amended assessment dated 8 August 2017.
This was also an amended assessment dated 8 August 2017.
This assessment was dated 7 December 2015.
Linsari and Kalnosa are now each deregistered corporations.
For clarity these formwork head contracts refer to the head contracts between Banfirn and head contractors. The only contact I was taken to was dated 11 September 2014 between Banfirn and FDC Construction & Fitout Pty Ltd.
By consent I made limitation orders under s 136 of the Evidence Act 1995 (NSW) about the contents of the Chief Commissioner's audit report dated 5 November 2015 and correspondence passing between the parties which formed part of Exhibit A. Neither party referred me to any material in relation to which a limitation order had been made.
For clarity these "formwork sub-contracts" refer to the head contracts between Banfirn and head contractors identified at [6] and fn 6.
Also referred to by Banfirn in submissions as a "specific tangible good".
The relevant provisions have not been amended since commencement.
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 1985, at 9557-9559.
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 October 1998, at 8287.
As explained by White J in Freelance Global at [115].
See UNSW Global at [62]; JP Property Services at [72]; HRC Hotel Services at [118]; Bayton at [94]. In Securecorp, at [87]-[90], I adopted this construction with a qualification. I remain of the view explained in Securecorp, however, nothing arises from that qualification here.
UNSW Global at [63]; JP Property Services at [72]; HRC Hotel Services at [153].
UNSW Global at [64].
UNSW Global at [65].
Bayton at [105], [266]. As I explained in Securecorp at [89], care should be taken not to parse and analyse the construction of s 37 provided in UNSW Global in substitution for the statutory language.
A similar argument was also rejected by Kunc J in JP Property Services. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2019

Payroll Tax (Amendment) Act 1985(NSW)

Payroll Tax (Amendment) Act 1987(NSW)

Pay-roll Tax Act 1971(NSW)

State Revenue Legislation (Miscellaneous Amendments) Act 1998(NSW)

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