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Legislation Cited: Administrative Decisions Review Act 1997
Payroll Tax Act 2007, s 74A
Supreme Court Act 1970, ss 66(4), 69
Taxation Administration Act 1996, ss 47B, 86, 94, 97, 101 and 103,

Cases Cited: Andrijic v Chief Commissioner of State Revenue [2024] NSWSC 1686
Andrijic v Chief Commissioner of State Revenue (No 2) [2025] NSWSC 119
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618
Beese (Managers of Kimpton Church of England Primary School) v Woodhouse [1970] 1 All ER 769;
Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892; [1984] 2 All ER 408
Kolback Securities Ltd v Epoch Mining (1987) 8 NSWLR 533
McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210
Snow v Deputy Commissioner of Taxation [1987] 14 FCR 119
Southgate Investment Funds Pty Limited & others v Deputy Commissioner of Taxation [2013] 211 FCR 274

Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths)

Category: Procedural rulings

Parties: Plaintiff: Sami Chamoun
Defendant: Chief Commissioner of State Revenue

Representation: Counsel:
Plaintiff: M. Fernandes
Defendant: S. Balafoutis SC; C.J. Chiam
Solicitors:
Plaintiff: V. Costa, LCI Legal
Defendant: K. Smith, NSW Crown Solicitors’ Office

File Number(s): 2026/309073

Publication restriction: No

EX TEMPORE JUDGMENT

1. The plaintiff, Mr Sami Chamoun, moves on Prayer 5 of his Summons, which seeks interlocutory relief to restrain the defendant, the Chief Commissioner of State Revenue (“the Chief Commissioner”), from taking any steps in reliance upon a document styled "Directors' Compliance Notice" dated 9 July 2026 (“the DCN”). The DCN was issued by the Chief Commissioner under the apparent authority of the Taxation Administration Act 1996 ("TAA") s 47B. If valid the DCN would impose payroll tax liabilities of $13,250,841.49 13 on Mr Chamoun. But he disputes its validity.

2. The interlocutory relief also seeks a restraint upon the Chief Commissioner taking any steps in reliance upon or any legal consequences arising from the issue of the notice of assessment. The interlocutory relief claimed in the Summons also sought that the matter be granted expedition, although this was not pressed strongly by the plaintiff.

3. The interlocutory relief is advanced in support of final relief set out in Prayer 7 of the Summons which, on various grounds which will be briefly mentioned below, seeks a declaration that the DCN is a nullity and he seeks to quash it under Supreme Court Act 1970 s 69. The Chief Commissioner resists the plaintiff's claim for interlocutory relief and contends that the application for interlocutory relief should be dismissed with costs.

4. The matter came on for hearing yesterday afternoon in a busy Duty List and was argued efficiently by the legal representatives on both sides. Mr M. Fernandes of counsel, instructed by Mr V. Costa of LCI Legal, appeared for the plaintiff. Mr S. Balafoutis SC leading Mr C.J. Chiam of counsel, instructed by K. Smith of NSW Crown Solicitors’ Office, appeared for the defendant. The Court considered the matter overnight and gives oral reasons for its decision this morning.

5. The DCN arises out of several notices of assessment for payroll tax that the Chief Commissioner has issued to three corporate entities to which the plaintiff is said to be related. The effect of those notices of assessment, if valid, is that three corporate entities may be “grouped” for payroll tax purposes under the applicable legislation, the TAA. The significance of the DCN is that, if valid, it then attaches liability to the plaintiff for the unpaid payroll tax liability of these grouped entities. The plaintiff disputes the validity of the DCN on various grounds which will be dealt with when final relief is determined. But principally the plaintiff disputes (a) that he was a director at the time the entities first became liable to pay the tax the subject of the assessments; and (b), that the structural provisions of the applicable taxing legislation, the Payroll Tax Act 2007 (“PTA”) s 74A apply and should be construed in a manner which a liability may ultimately attach to the plaintiff.

6. The merits of these two contentions that Mr Chamoun advances about the validity of the DCN will be determined at final hearing. The present issue is whether an interlocutory injunction should be granted. These reasons first set out some guiding principles in relation to the granting or withholding of interlocutory relief. Then these reasons examine more closely the contest about Mr Chamoun’s payroll tax liability under the DCN.

The Court’s Task on This Application

7. The Court has power to grant interlocutory injunctions under Supreme Court Act 1970, s 66(4), on terms, if necessary, in any case where “it appears to the Court to be just or convenient”. The Court must consider whether the plaintiff’s case presents a serious question to be tried and whether the balance of convenience, hardship and related factors warrant the grant of an interlocutory injunction.

8. This is an interlocutory hearing, not a final hearing. The Court’s task is not to undertake a preliminary trial and to give or withhold interlocutory relief upon some forecast as to the ultimate result of the factual dispute between the parties, although the relative strengths of the parties’ cases are not irrelevant to the exercise of the Court’s discretion.

9. The Court’s task on an interlocutory hearing such as this one was well expressed by the English Court of Appeal in Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892; [1984] 2 All ER 408; (1984) 81 LSG 2225; (1984) 128 SJ 484 when Sir John Donaldson MR said (at 894H – 895A):

“The defendants now appeal. It is of paramount importance that everyone should understand the exercise upon which the judge was, and we are, engaged. There is to be a speedy trial at which the rights of the parties will be determined. That has not yet happened. We are concerned, so far as we can, to preserve the rights of the parties meanwhile. It is not our function to decide questions of fact or law which will be in issue at the trial. If they are arguable, that is the time and the place when they should be argued.”

10. Later in the same judgment his Lordship further explained the Court’s duty in following terms (at 898E-898G):

“What then should we do? I stress, once again, that we are not at this stage concerned to determine the final rights of the parties. Our duty is to make such orders, if any, as are appropriate pending the trial of the action. It is sometimes said that this involves a weighing of the balance of convenience. This is an unfortunate expression. Our business is justice, not convenience. We can and must disregard fanciful claims by either party. Subject to that, we must contemplate the possibility that either party may succeed and must do our best to ensure that nothing occurs pending the trial which will prejudice his rights. Since the parties are usually asserting wholly inconsistent claims, this is difficult, but we have to do our best. In so doing, we are seeking a balance of justice, not of convenience.”

11. In deciding whether to grant an interlocutory injunction the Court must consider whether there is a serious question to be tried and then whether the balance of convenience and questions of hardship and related factors warrant the grant of an interlocutory injunction. First, the plaintiff must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief is granted: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [21–350] (“Equity Doctrines and Remedies”), discussing the requirements of the Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618; [1968] ALR 469; (1968) 42 ALJR 80; [1968] RPC 301 prima facie case test. Put another way, the plaintiff must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; (2006) 229 ALR 457; (2006) 80 ALJR 1672; [2006] HCA 46 at [70] – [71].

12. Then, it becomes a matter of analysing if in all the circumstances of the case, considering the balance of convenience and issues of hardship, the Court should nonetheless exercise its discretion by declining to issue an interlocutory injunction: Equity Doctrines and Remedies at [21–350]; and see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; (2001) 185 ALR 1; (2001) 76 ALJR 1; [2001] HCA 63 and Beese (Managers of Kimpton Church of England Primary School) v Woodhouse [1970] 1 All ER 769; [1970] 1 WLR 586. Other factors to which the Court will have regard include the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, but hardship and the balance of convenience are very important: Equity Doctrines and Remedies [21 – 375]. If any infringement of a plaintiff’s right between writ and hearing would be properly compensated in damages, that fact alone can, but not must, be a ground for declining an injunction: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210; (1918) 35 WN (NSW) 85.

13. In Kolback Securities Ltd v Epoch Mining (1987) 8 NSWLR 533; (1987) 11 ACLR 630 McLelland J (as His Honour then was) when considering what must be established for the grant of an interlocutory injunction when the restraint in question may have implications for the disposition of the proceedings at final hearing, said:

"As I see it, the position is as follows. Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216; A v Hayden (No 1) (1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question: see, eg, A v Hayden (No 1) (at 4; 78); Cohen v Peko-Wallsend (1986) 61 ALJR 57 at 59;68 ALR 394 at 397. If the Court does decide the question of law the uncertainty is to that extent removed.

Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; 52 ALR 651; A v Hayden (No 1); Castlemaine-Tooheys Ltd v South Australia (1986) 60 ALJR 679; 67 ALR 553 and Cohen v Peko-Wallsend Ltd.

Apart from this, although normally the Court "does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case" (Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622), there are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically "the balance of the risk of doing an injustice" - see per May LJ in Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at 285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682; 559. One class of case to which this applies is where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue: see, eg, NWL Ltd v Woods [1979] 1 WLR 1294 at 1306-1307; [1979] 3 All ER 614 at 625-626 per Lord Diplock; Cayne v Global Natural Resources plc. The present is such a case. The substantial matter in issue is whether Epoch should be permitted to proceed with the issue of non-renounceable rights in accordance with the announcement of 13 March 1987. That will be irrevocably determined in a practical sense by the grant or refusal of an interlocutory injunction."

14. These reasons now set out a narrative of some facts relevant to the interlocutory issues. In such a hearing in the duty list, the Court’s reasons cannot encompass all the relevant facts. Except where the facts are uncontentious, and many of them are in this matter, the Court’s narrative below should be understood, and is mostly expressed, as a forecast of the kind of evidence that each party proposes to adduce and the contentions that each party intends to advance at a final hearing.

The Issue of the DCN on 9 July 2026 and the Financial Evidence

15. In late 2024 and early 2025, the Chief Commissioner issued notices of assessment to E Group Security Pty Ltd (“E Group Security”) and assessed it as liable to pay payroll tax for various financial years from FY2015 through to FY2023, but excluding FY2019. Other notices of assessment were issued in 2018 to Coach Business Group Pty Ltd (“Coach Business”), which the Chief Commissioner alleges is a related entity. On the evidence available on this application, those payroll tax assessments to E Group Security and Coach Business are unpaid.

16. On 17 June 2026 the Chief Commissioner issued a further notice of assessment to E Group Protective Services Pty Ltd (“E Group Protective Services”) on the basis that E Group Protective Services and Coach Business all form part of the same corporate group under PTA s 74A. If its preconditions are met, the legal effect of PTA s 74A is to make E Group Protective Services liable for the payroll tax owed by all the other entities in the corporate group. But it is essential that the preconditions for “grouping” under PTA s 74A be satisfied before grouping liability attaches to E Group Protective Services.

17. On 9 July 2026, the Chief Commissioner issued the DCN to the plaintiff relying upon TAA s 47B. The effect of the DCN, if valid, would be to make the plaintiff jointly and severally liable with E Group Protective Services if that company fails to pay its tax liability, and that failure was not rectified within the required period of 21 days.

18. The financial evidence adduced at this interlocutory hearing was basic on both sides. The plaintiff's case was that he would suffer “severe and real prejudice” if the liability specified in the DCN of $1,250,841.49 and the requirement for payment within 21 days were not stayed. That would, as paragraph 10 of his affidavit of 29 July 2026 said:

"Will cause me severe and real prejudice in causing because of enforcement steps and legal proceedings it may subject me to".

19. But that was the only evidence of prejudice that Mr Chamoun advanced in support of his application. The Court does not have on this application, for example, any evidence of the plaintiff's current financial circumstances. The Court does not have a balance sheet of Mr Chamoun’s assets and liabilities, or any other information about the plaintiff's sources of income or the liabilities that he faces on an ongoing basis. Nor does the Court have any clear picture of the various business structures that Mr Chamoun controls. The only evidence before the Court about these matters has come indirectly through the evidence adduced by the Chief Commissioner.

20. After exchanges with the Bench, Mr Fernandes, counsel for the plaintiff, indicated that pending the hearing of these proceedings it may be possible to gain instructions for the plaintiff to give an undertaking that he would not dispose of assets cumulatively of more than $100,000. That suggestion was proffered on behalf of Mr Chamoun after the Court raised with Mr Fernandes (a) the lack of detailed evidence of the plaintiff's financial position, and (b) the lack of any undertaking from Mr Chamoun about him not dealing with his assets, as a condition of a grant of the injunctive relief.

21. Mr Fernandes put the suggestion as effectively on the available evidence as he could, but the plaintiff neither sought an adjournment to put on such evidence, nor ultimately gave a firm undertaking not to deal with his assets to the effect suggested.

22. One other piece of important evidence was adduced on the defendant's side. It is not in contest that in April 2025 Mr Chamoun divested himself of his interests in E Group Protective Services to an entity by the name of Bidvest Pty Ltd. The Court has the Share and Purchase Agreement by which Mr Chamoun sold his shares in E Group Protective Services. That agreement indicates that the plaintiff was entitled to receive two amounts on settlement of that sale of $568,216 and $19,713,199 respectively. Contemporaneous evidence in the form of bank statements appears to indicate that those funds totalling $20,281,415 were received by Mr Chamoun at or about that time.

A Serious Question to Be Tried

23. Against that factual background, the final relief the plaintiff claims in prayer 7, that the DCN was a nullity, challenged several of the assumptions behind the valid operation of the DCN. Mr Chamoun first contends that the Chief Commissioner has not satisfied the requirement for the operation of TAA s 47B: that the DCN must be issued to a person who was a director at the time the corporation first became liable to pay the tax included in the related corporation’s tax liability. Mr Chamoun says he was not a director of E Group Protective Services when a payroll tax assessment was first issued to it, as he ceased to be a director of that company in September 2023 but the Chief Commissioner’s assessment was first issued to that company in December 2025. The Chief Commissioner seeks to answer this by saying that E Group Protective Services’ first became “liable to pay the tax” is when the payroll tax was due not when the assessment was issued to it.

24. Mr Chamoun’s second contention was that, having regard to the definition of "former entity" within PTA s 74A(5), the earliest time that E Group Security could become a “former entity” is when it entered into liquidation and that the premise for the operation of PTA s 74A is therefore not enlivened. The Chief Commissioner contends that the expression “former entity” is inclusive and is not limited to entities which are in administrational being wound up and can include a legal person that no longer exists.

25. The Court does not need to go further into the merits of these various arguments. The Chief Commissioner concedes that there is a serious question to be tried in relation to the claim for declaratory relief that the DCN was a nullity.

Interlocutory Relief in Payroll Tax Cases

26. On the question of balance of convenience, the parties first debated how the Court should approach the issue of hardship to the taxpayer from his potentially having to pay the liability on the DCN pending final hearing, if interlocutory relief is not given.

27. Mr Chamoun acknowledged the established case law reflected in cases such as Andrijic v Chief Commissioner of State Revenue (No 2) [2025] NSWSC 119 (“Andrijic No. 2”); Snow v Deputy Commissioner of Taxation [1987] 14 FCR 119 (“Snow”), and Southgate Investment Funds Pty Limited & others v Deputy Commissioner of Taxation [2013] 211 FCR 274 (“Southgate”) that the fact that a review of the tax liability is pending does not prevent the Chief Commissioner from collecting in the meantime the amount due and payable under an applicable assessment: see TAA ss 94 and 103. The applicable law is concisely summarised in Hmelnitsky J’s decision and Andrijic No. 2 ([29] and [34]) as follows:

“29. It is necessary to approach all of these issues with an appreciation of the statutory scheme for the recovery of tax debts in New South Wales. That scheme is very much like the scheme that operates federally, and which has been the subject of very considerable judicial consideration. The combined effect of ss 16, 118 and 119 of the Taxation Administration Act is that a notice of assessment of a taxation liability is conclusive evidence of the due making of the assessment and the correctness of the amount and the particulars of the assessment, except in proceedings by way of objection or review under Part 10 of the Act.

30. The fact that an objection or review is pending does not prevent the defendant from collecting the amount due and payable under the assessment: see ss 94 and 103 of the Taxation Administration Act.

31. The scheme of the legislation is that, in the ordinary run of things, the defendant is entitled to recover debts prior to and independently of the process of objection and review. As I have mentioned, the scheme bears a very close similarity to the scheme created by the Income Tax Assessment Act 1936 (Cth) and schedule 1 to the Taxation Administration Act 1953 (Cth). The plurality in the Deputy Commissioner of Taxation v Broadbeach Properties Pty Limited (2008) 237 CLR 473; [2008] HCA 41 said this of the federal scheme at [44]:

“Harsh though the operation of these provisions may be, they implement a long-standing legislative policy to protect the interests of the revenue."

32. The plurality then referred to the decision in Deputy Federal Commissioner of Taxation v Niblett (1965) 83 WN (Pt 1) (NSW) 405 and to the reasons given by Bowen CJ in Eq in Re Roma Industries Pty Ltd (1976) 6 ATR 54; (1976) 1 ACLR 296. All of those observations apply equally in the context of the statutory scheme for the recovery of tax liabilities in New South Wales.

33. The Court nonetheless has the power to restrain the defendant from recovering tax liabilities pending review. However, it will only exercise that power sparingly. The parties on this application have quite appropriately taken as their starting point the reasons of French J in Snow v Deputy Federal Commissioner of Taxation (WA) (1987) 14 FCR 119, particularly what his Honour said at page 139.

34. The parties also referred to the reasons of the Full Federal Court in Southgate Investment Funds Limited v Deputy Commissioner of Taxation (2013) 211 FCR 274; [2013] FCAFA 10. At [77] of those reasons, McKerracher, Jagot and Griffiths JJ, identified the considerations which may be relevant in deciding whether or not a stay should be granted. Those criteria have been a useful guide to my own consideration of whether or not a stay should be granted in the present case.”

28. On the same subject, in Snow, French J (as his Honour then was) said the following (at page 139):

“It may generally be concluded from the preceding review, that the power of State courts to stay recovery proceedings instituted in them under the ITAA is well established and that courts exercising it have regard to the following propositions:

The policy of the ITAA as reflected in its provisions gives priority to recovery of the revenue against the determination of the taxpayer’s appeal against his assessment.

The power to grant a stay is therefore exercised sparingly and the onus is on the taxpayer to justify it.

The merits of the taxpayer’s appeal constitute a factor to be taken into account in the exercise of the discretion (although some judges have expressed different views on this point).

Irrespective of the legal merits of the appeal a stay will not usually be granted where the taxpayer is party to a contrivance to avoid his liability to payment of the tax.

A stay may be granted in a case of abuse of office by the Commissioner or extreme personal hardship to the taxpayer called on to pay.

The mere imposition of the obligation to pay does not constitute a hardship.

The existence of a request for reference of an objection for review where appeal is a factor relevant to the exercise of the discretion.”

29. And finally in Southgate (at [77]), the Full Court of the Federal Court found that the following principles, inter alia, guide the exercise of the discretion to grant a stay of the execution of a judgment debt based upon a taxation assessment:

“a. The power to grant a stay should be exercised sparingly and the taxpayer bears the onus of persuading the court that a stay ought to be granted in the particular circumstances;

b. great weight must be given to the clear legislative policy manifested in provisions such as ss 14ZZM and 14ZZR of the TAA which give priority to the recovery of taxation revenue notwithstanding that a taxpayer has a Pt IVC proceeding on foot. The Commissioner is placed by the legislation in a position of special advantage and is generally free to pursue recovery proceedings despite the pendency of Pt IVC proceedings;

c. the merits of pending Pt IVC proceedings may be a relevant consideration to be taken into account in the exercise of the discretion, but the court should not attempt to determine the merits unless it has sufficient material before it to do so and it should avoid speculation;

…

i. due acknowledgment should be given to the asperity with which provisions such as ss 14ZZM and 14ZZR may operate, but in appropriate circumstances a court might consider that a stay is warranted in cases of extreme hardship to a taxpayer, noting however that:

(i) the mere obligation to pay income tax of itself does not impose extreme hardship; and

(ii) the possibility that the taxpayer may be bankrupted is generally not of itself an extreme hardship, however, different considerations may arise if, for example, it is demonstrated that the execution of a judgment debt would deprive the taxpayer of the financial resources needed to prosecute extant Pt IVC proceedings;

j. irrespective of the merits of pending Pt IVC proceedings, a stay will not usually be granted where the taxpayer is party to a contrivance to avoid liability to pay the tax;”

30. Mr Chamoun argues that whilst acknowledging these authorities, that they either do not apply in this case, or do not apply with their full force, because the plaintiff is pursuing an administrative law remedy, a declaration that the DCN is a nullity, and is not pursuing the process set out under the TAA Part 10 for objection and review. He submits that the Court should not apply the same policy considerations as those elucidated in authorities such as Andrijic No. 2*, Snow* and Southgate, where proceedings were commenced by way of objection and review under the statutory process enabled by TAA Part 10.

31. The plaintiff points out in its written and oral submissions that he has pursued a faster and more direct procedural vehicle by way of his Summons for a declaration that the issue of the DCN was a nullity, rather than pursuing the more cumbersome process of submitting an objection, awaiting either an adverse decision, or a non-decision, and then pursuing objection and review proceedings under the TAA Part 10. Mr Chamoun indicates that he is prepared to undertake to conduct the proceedings expeditiously, considerations which are relevant on the balance of convenience.

32. The Court is not persuaded of Mr Chamoun’s submissions. The principle applies here: that a pending review of a tax liability does not prevent the Chief Commissioner in the meantime from collecting the amount due and payable. The policy considerations set out in Andrijic No. 2*, Snow* and Southgate apply here. To accept an argument that these principles do not apply here would be to promote form over substance. Mr Chamoun’s claim for final declaratory relief that the DCN is a nullity (and many claims like it) could readily be brought under the broadly defined statutory objection process in TAA Part 10. It would be unusual that the principles that apply to that objection process could be circumvented by simply filing a summons seeking a declaration, rather than following the statutory review pathway provided for within TAA Part 10.

33. The Court has been usefully taken by the legal representatives of the parties to TAA Part 10, ss 86, 94, 97 and 101. These are set out below, as follows:

86 Objections

(1) A taxpayer who is dissatisfied with—

(a) an assessment that is shown in a notice of assessment served on the taxpayer, or

(b) any other decision (within the meaning of the Administrative Decisions Review Act 1997) of the Chief Commissioner under a taxation law,

may lodge a written objection with the Chief Commissioner.

(2) However, a taxpayer may not lodge such an objection in respect of the following—

(a) an assessment made under section 12 (Compromise assessment) with the agreement of the taxpayer,

(ab) a decision not to make an assessment under section 12,

(b) the determination of an objection under this Part (including such part of any reassessment that gives effect to the determination of an objection that is allowed in whole or in part),

(c) a decision to reassess the taxpayer’s tax liability that does not have the effect of increasing that liability where the taxpayer seeks to lodge the objection more than 60 days after the date of service of the notice of the initial assessment,

(d) a decision not to reassess the taxpayer’s tax liability where the taxpayer seeks to lodge the objection more than 60 days after the date of service of the notice of the initial assessment.

(3) The provisions of subsection (2) (c) and (d) do not preclude the lodgment of an objection that is sought to be lodged more than 60 days after the date of service of the notice of the initial assessment if the Chief Commissioner permits its lodgment. The provisions of section 90 (2)–(5) apply to any such objection in the same way as they apply to an objection referred to in section 90 (1).

94 Recovery of tax pending objection

The fact that an objection is pending does not in the meantime affect the assessment or decision to which the objection relates and tax may be recovered as if no objection were pending.

97 Review by Supreme Court

(1) A taxpayer may apply to the Supreme Court for a review of a decision of the Chief Commissioner that has been the subject of an objection under Division 1 if—

(a) the taxpayer is dissatisfied with the Chief Commissioner’s determination of the taxpayer’s objection, or

(b) 90 days (not including any period of suspension under section 92) have passed since the taxpayer’s objection was served on the Chief Commissioner and the Chief Commissioner has not determined the objection.

(2) A taxpayer who has applied to the Civil and Administrative Tribunal under section 96 for an administrative review in respect of a decision cannot apply to the Supreme Court under this section in respect of the same decision. However, the taxpayer may do so if the earlier application is withdrawn with the approval of the Civil and Administrative Tribunal for the purposes of enabling the Supreme Court to deal with the matter.

(3) (Repealed)

(4) A review by the Supreme Court is taken to be an appeal for the purposes of the Supreme Court Act 1970 and the regulations and rules made under that Act, except as otherwise provided by that Act or those regulations or rules.

101 Powers of court or tribunal on review

(1) The court or tribunal dealing with the application for review may do any one or more of the following—

(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit.

(2) Nothing in this section limits the application of the following provisions in respect of an application for review before the Civil and Administrative Tribunal—

(a) Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997,

(b) section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.

34. In the Court's view it is well arguable that this application could have been brought as a part of a process of review under s 101(b) or 101(e) following upon an objection made under s 86(1)(b), which embeds the definition of "decision" under the Administrative Decisions Review Act 1997*.* In this case the administratively reviewable decision is the decision to issue the DCN. It would be possible to object to the DCN as a nullity as part of a Part 10 “objection” the subject matter which is broad. The taxpayer could then require a decision from the Chief Commissioner within the applicable 90-day period. If a decision was not forthcoming, the taxpayer could bring TAA Part 10 proceedings. The plaintiff has chosen a faster course by seeking a declaration. But both forms of review could be joined in the one proceeding. In the Court’s view the application of general policy should not be circumvented merely because the taxpayer chooses a different remedy.

35. There are other reasons to reach the same conclusion. Indeed, if Andrijic (No.2) is examined together with the initial decision of Cavanagh J in the same matter, in Andrijic v Chief Commissioner of State Revenue [2024] NSWSC 1686, it would appear the policy has already been applied by analogy. In Andrijic v Chief Commissioner of State Revenue [2024] NSWSC 1686 the principles in Snow and Southgate were applied when the Court examined an Amended Summons seeking a declaration that certain determinations be set aside. Andrijic does not appear to be a case involving an objection and review under TAA Part 10.

36. Moreover, in Andrijic No. 2*, Snow* and Southgate and the other similar authorities, the statements of principle are wide enough to cover not just a TAA Part 10 objection and the associated review process, but analogous proceedings for declaratory relief such as these. The Court will apply these principles in this case.

37. One other matter should be mentioned before proceeding to discuss the balance of convenience. There was at one stage a suggestion in argument that the plaintiff had engaged in a contrivance to avoid liability to pay the tax the subject of these proceedings. The Chief Commissioner’s potential contention was that the plaintiff had placed a corporate entity into voluntary liquidation without disclosing the tax liability the subject of these proceedings. But the circumstances in which Mr Chamoun executed the relevant documents leading to the voluntary liquidation were ambiguous and the matter was not pursued.

The Balance of Convenience

38. It now falls for the Court to consider the exercise of the relevant discretion on the balance of convenience. The Court will do that in two ways. One, treating this as a tax case but then looking at what is presented as if it were not a tax case, as an additional test.

39. The Court is not persuaded that any discretionary interlocutory relief should be granted to the plaintiff. His arguments about expedition and how streamlined an expedited hearing could be, also work against him. If the plaintiff seeks and gains expedition in this matter, he submits the question of the nullity of the DCN could be argued in the expedition list as a hearing of purely legal argument occupying less than one day and could therefore probably be determined within no more than two or three months. So, if the plaintiff is required to meet its liability on the DCN, then it may not be for a very long period (at least on the plaintiff’s case) that he would be out of pocket. If Mr Chamoun is correct about the invalidity of the DCN then he should have his funds back quickly.

40. But the evidence of hardship, let alone extreme hardship, if the plaintiff is required to satisfy the DCN before final hearing, is almost non-existent. But for Mr Chamoun’s vague statement cited above claiming “severe and real prejudice”, there is no real evidence of him suffering hardship, and in the absence of any concrete supporting evidence is more in the nature of a submission than evidence.

41. The authorities are clear that the mere obligation to pay the tax is not in itself a hardship and should not be treated as one. The usual discretionary factors that might apply, such as interference with an ongoing business, disadvantage to the way of life of the plaintiff, or other short-term disadvantages that might paralyse the plaintiff's personal or working life, have not been advanced by the plaintiff.

42. The absence of such evidence in this case is particularly significant considering the limited evidence that is available. The evidence is that the plaintiff has received an amount $20,281,415 approximately 15 months ago. This is sufficient to cover the entire $13,250,841.49 debt in question and leave the plaintiff with a balance of approximately $7 million to meet his personal and business needs. What Mr Chamoun has done with the $20,281,415 since April 2025 remains unexplained. Although this is not a matter of onus, the plaintiff should go at least some way to explain that there is substance behind his proposed undertaking as to damages. The Court does not have that comfort here.

43. But the plaintiff would not have succeeded on the balance of convenience on this evidence even if Mr Chamoun did not have to meet the additional hurdle of this being an interlocutory tax case. Mr Chamoun advances no concrete evidence supporting a maintainable case of any hardship. Additionally, Mr Chamoun’s evidence does not explain why no evidence of his financial position has been adduced and no undertakings not to deal with his assets pending final hearing are given.

44. Even if this were not a tax case, and even if the principles in relation to tax cases elucidated above did not apply, a plaintiff who came to this Court, seeking interlocutory relief restraining the enforcement of a liability or an order on grounds of hardship, but who did not tender concrete financial evidence to support such a claim for hardship, would find the Court disinclined to grant such relief. The Court will not grant relief here.

45. For those reasons, the Court will not exercise the discretion to grant the interlocutory relief sought by the plaintiff. Mr Fernandes put the material available to him forward to its best advantage. But in the Court's view these applications for interlocutory relief should be dismissed with costs.

46. The Court ORDERS that:

47. DISMISS the plaintiffs application.

48. ORDER the plaintiff to pay the defendants costs of this application.

49. ADJOURN these proceedings in the Expedition List judge on Friday, 7 August 2026.

50. NOTE with a view to the Expedition List judge deciding what expedition it should receive.

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