20BLimitation on recovery of tax or amount attributable to tax

20B Limitation on recovery of tax or amount attributable to tax (1) A proceeding to which this section applies is only maintainable to the extent that the person bringing the proceeding (***the claimant***) satisfies the court that recovery of the money would not result in a windfall gain to the claimant. (2) For the purposes of subsection (1), recovery of money would not result in a windfall gain to the claimant if— (a) the claimant has not charged to, or recovered from, and will not charge to or recover from, any other person an amount in respect of that money, whether or not that amount was itemised or otherwise separately identified in any invoice or other document issued by the claimant; or (b) the claimant has reimbursed, or has entered into an unconditional and enforceable agreement to reimburse, each other person to whom the claimant has charged, or from whom the claimant has recovered, an amount in respect of that money. (3) This section applies to— (a) a proceeding between parties of any kind for the recovery of money paid by way of— (i) tax or purported tax; or (ii) an amount that is attributable to tax or purported tax— under a mistake (either of law or of fact) or under colour of authority; or (b) a proceeding between parties of any kind for the recovery of money so paid that is recoverable because of the invalidity of a law or provision of a law. (4) In this section— ***claimant*** includes a predecessor or successor of a claimant; ***law*** means— (a) an Act; or (b) a subordinate instrument within the meaning of the **Interpretation of Legislation Act 1984**; or (c) any other instrument that— (i) applies as a law of Victoria; or (ii) is made under, and is enforceable in accordance with, the provisions of an Act or of an instrument referred to in paragraph (b) or subparagraph (i); ***proceeding*** includes— (a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction; or (b) seeking any order under the **Administrative Law Act 1978**; ***tax*** includes fee, charge or other impost. Heading preceding s. 21 substituted as Pt 1 Div. 6 (Heading) by No. 76/2004 s. 4(1)(f).