The Gazette 1994

JULY 199s

GAZETTE

1988, having been made in error, should be set aside. Reported at [199411 ILRM 29

of the Revenue Commissioners to apply by notice of motion to Carroll J for an order under s. 428(6) of the Income Tax Act 1967 remitting the appeals to the Appeal Commissioner. When no such motion was brought, proceedings by sum- mary summons were initiated on behalf of the company and a motion for judg- ment was brought. On 25 February 1988, Carroll J made an order in the context of the summary proceedings directing that her earlier order of 14 May 1985 should be amended by the addition of a direc- tion that the appeal should be re-entered before the Appeal Commissioner so that it could be determined having regard to the previous finding of the court. The appellant company appealed to the Supreme Court against that order. Held by the Supreme Court (Finlay CJ; Blayney and Denham JJ concurring) in allowing the appeal and in directing that the proceed i ngs by way ofsummarysum- mons be continued in the High Court pursuant to the court's decision on the appeal: (1) There is a wide and funda- mental jurisdiction in a court to amend an order which it has previously made even though that order is in the form of a final order and has been perfected. Dicta of Romer J in Ainsworth v Wilding 11896] 1 Ch 673 applying In re Swire (1885) 30 ChD 239, approved. (2) Where an order of a final nature has been passed and perfected, an amendment should be made by the court only in special or unusual circumstances. (3) A judge who, upon the hearing of a case stated pursuant to s. 428 of the Income Tax Act 1967, deter- mines that the adjudication of the Appeal Commissioner on a point of law was incorrect has a distinct discretion which must then be exercised as to whether or not it is appropriate for the case to be remitted. (4) S. 428 of the Income Tax Act 1967 was not mentioned in the judgment of the learned trial judge of 14 May 1985 and there was no reference in the judg- ment as to the exercise by the learned trial judge of a discretion on the issue pertaining to whether or not it was an appropriate case in which to make an order remitting it for further hearing by the Appeal Commissioner. (5) It was not inclusive, in the sense of meaning neces- sarily and inevitably implied, in the judg- ment of the learned trial judge of 14 May 1985 that the case stated should have been referred back to the Appeal Com- missioner for hearing. (6) The granting of such an order would have been an addi- tional remedy not di rected by the terms of the judgment of 14 May 1985. In these circumstances and having regard to the principles regarding the amendment or alteration of a final order made otherwise than through accidental error, the com- pany's appeal on the first issue should be allowed and the order of 28 February

Belville Holdings Ltd v Revenue Com- missioners Supreme Court 1993 No. 139 (Finlay CJ, Blayney and Denham Jj) 8 February 1993 Revenue - Case stated by Appeal Com- missioner - Manner in which allowable losses should be computed - Whether notional fees attributable to services af- forded by appellant company to subsidi- ary companies should be taken into ac- count - Manner in which discretion of High Court judge in relation to remitting matter should be exercised - Income Tax Act 1967, s. 428 Facts On 24 April 1984 the Appeal Com- missioner, at the request of the appellant company, stated a case for the opinion of the High Court pursuant to s. 428 of the Income Tax Act 1967 following the de- termination of appeals brought by the appellant company against two assess- ments to corporation tax made in respect of it by the inspector of taxes. The ques- tion for decision on that case stated was whether for the two relevant accounting periods the losses shown in the company accounts should be allowed for the pur- pose of the claim to payment of tax credits under s. 16(2) and s. 25 of the Corporation Tax Act 1976 in respect of dividends received from subsidiary com- panies. The Appeal Commissioner determined that in computing the taxable profits or losses of the parent company for the period in question, provision should be made for notional management fees equivalent to the market value of the services provided to subsidiaries, which he estimated at 10% of the income of the paying companies. The question of law stated for the opinion of the High Court in the case stated concerned whether the Appeal Commissioner was correct in holding that the notional fees attributable to the services afforded by the appellant com- pany to its subsidiary companies should be taken into account. In a judgment delivered on 14 May 1985, Carroll J held that while it was correct that notional fees should be taken into account, the actual notional fees fixed by the Appeal Commissioner were not justified and she answered the ques- tion posed in the case stated in the nega- tive (See [19851 IR 465). In August 1986, the joint receivers of the appellant company wrote to the Rev- enue Solicitor making a demand totalling £122,979.69 for refunds of corporation tax based on an assertion that the finding of the High Court to the effect that the Appeal Commissioner was wrong in his determination entitled the company to these refunds with interest thereon. In reply it was stated that it was the intention

Hanbridge Services Ltd v Aerospace Communications Ltd: Supreme Court (Finlay CJ,0'Flaherty, Egan, Blayney and Denham JJ) 10 March 1993. Practice-Jurisdiction of courts-Conflict of laws - Claim for damages for breach of contract - Defendant company registered and domiciled outside jurisdiction - Motion to strike out plaintiff's claim for want of jurisdiction - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988. Facts The plaintiff company was regis- tered and domiciled in Ireland and the defendant company was registered and domiciled in the United Kingdom. The plaintiff claimed damages for breach of contract and in so claiming asserted that the High Court had jurisdiction to hear and determine its claim under Article 5.1 of the Brussels Convention 1968 as im- plemented in Ireland by the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988. This was on the basis that the place of per- formance of the obligation arising under the alleged contract was Ireland. The plaintiff contended that under a contract made between it and the defendant, it was agreed that the plaintiff would manu- facture and sell 8,000 computers to the defendant over the period of three years 1991 to 1993 inclusive. It was accepted by the parties that between August and November 1990, six sample computer systems were ordered by the defendant from the plaintiff and the latter received payment. Subsequently, on receiving an inquiry from the plaintiff, the defendant asserted that no agreement existed; what had been merely a possible project was now abandoned for various reasons and that it had no further obligations to the plaintiff. Lardner J dismissed the applica- tion to have the proceedings struck out. The defendant appealed to the Supreme Court. Held by the Supreme Court (Finlay CJ; O'Flaherty, Egan, Blayney and Denham JJ) in allowing the appeal: (1) The onus is on the plaintiff seeking to have a claim tried in the jurisdiction of a contracting state other than the contracting state in which the defendant was domiciled to establish that such claim unequivocally came within the exception provided for in Article 5.1 of the Brussels Convention. (2) In the case of a claim for breach of contract, therefore, the plaintiff must prove that the obligation in question in that claim was, by virtue of the terms of the

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