On 2 April 2014, the High Court of Australia put to rest
any prior belief that there is a general right of recovery outside
of the refund provisions of the Customs Act 1901
The High Court dismissed the appeal in Thiess v Collector of
Customs & Ors  HCA 12 finding that with the
exception of two statutory provisions, section 167(4) of the
Customs Act bars all actions for the recovery of duty paid to
Customs, even if the dispute did not arise at the time the duty was
This decision meant that Mr Thiess was unable to recover the
$543,919 in duty and GST he mistakenly paid to Customs when the
incorrect weight of his yacht was declared, preventing him from
entering the goods duty free (to which he was entitled under the
Section 167(1) proscribes that if a dispute arises in relation
to the payment of duty or liability as to the goods, then the owner
of the goods can pay the amount demanded by Customs "under
protest" at the time of payment.
Despite Mr Thiess' argument that no "demand" had
been made and no dispute had arisen at the time of payment, the
High Court found that a demand in fact had been made by the
automatic calculation of the duty based on the information provided
(albeit incorrectly) at that time.
Accordingly, outside the provision for recovery of the amount
paid "under protest" in section 167(2) of the Customs Act
or the refund provisions under section 163 of the Customs Act,
there is no right of recovery of duty and GST paid incorrectly.
Now, where no dispute has arisen at the time of payment and
where the Customs Act has not prescribed for a refund the relevant
circumstance, owners appear to have no right to recovery. Perhaps
the best way for owners to protect themselves would be to pay for
all goods "under protest" from now on?
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