DomaCom backs down claim of legal victory

28 September 2018

Following a declaration earlier this week that its Federal Court matter with the Australian Taxation Office (ATO) had ended, Domacom has been forced to back down after differing interpretations of the High Court Rules 2004 left it open for the ATO to lodge leave to appeal to the High Court.

The fractional property investing company announced the legal action had concluded on the basis that the ATO had until 7 September this year to file an application for special leave to appeal to the High Court. As the ATO had not done so, Domacom presumed the matter closed.

The ATO, however, interpreted the word “judgment” in rule 41.02 of the High Court Rules 2004 to instead mean that it had until 16 October 2018 to file an application, reading it as refering to the judgment date of the Federal Court's appellate division.

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Rule 41.02 provided that an application shall be filed within 28 days of the judgment, with the Rules interpreting that judgment as meaning “the judgment from which it is sought to appeal, and in relation to an appeal, means the judgment from which the appeal is brought”.

The crux of the issue was the timing of the judgment to be appealed, after the Federal Court of Appeal upheld an earlier judgment in DomaCom’s favour.

The matter, in which DomaCom was supporting Benson Fund trustee Aussiegolfa, considered the application of superannuation legislation to allow investment in the DomaCom fund by a self-managed superannuation fund where the related party was a tenant in the underlying property.

At the time of printing, DomaCom had not been informed whether the ATO intended to appeal.

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