Deputy Commissioner of Taxation v Nammi [2026] NSWDC 105

Publication restriction: No

JUDGMENT - EX tempore

1. By proceedings commenced by way of Statement of Claim filed on 8 May 2025, the plaintiff, the Deputy Commissioner of Taxation, seeks orders against the defendant, Mr Vamsi Nammi, for the payment by the defendant of certain moneys said to be moneys owed by the defendant relating to tax‑related liabilities. The particulars of the amounts claimed are set out in substantial detail in the Statement of Claim.

2. By Defence filed on 18 July 2025, the defendant admits certain matters and does not admit or denies other matters. It is pleaded by him that, by way of complete defence to the claim brought by the plaintiff, between October 2023 to November 2024, the defendant was subject to a substantial mental health condition and other pressures and did not have the capacity to perform his usual duties as a director. It is also pleaded that a third party was responsible for tax lodgements for the relevant company in question which were to be filed as and when due. It is pleaded that, at all times, the defendant was advised that the tax lodgements were lodged on time as and when each fell due.

3. On 17 December 2025, the Judicial Registrar listed the matter for hearing today with an estimate of one day. The plaintiff was ordered to notify the defendant of the hearing.

4. On 21 October 2025, the Judicial Registrar made orders for the service of affidavit evidence by the parties. The plaintiff Deputy Commissioner has served affidavit evidence on which he relies. The defendant has not served any evidence.

5. At the hearing, the plaintiff Deputy Commissioner read the following affidavits:

(a) Affidavit of Michael Brandon of 8 April 2026; (b) Affidavit of Khaled Metlej of 7 April 2026; (c) Affidavit of Sevanthi Selvarajah of 11 November 2025; and (d) Affidavit of Sevanthi Selvarajah of 7 April 2026.

6. In addition, the exhibit to the affidavit of Sevanthi Selvarajah of 11 November 2025 was made Exhibit A in the proceedings and a calculation of interest claimed by the Commissioner was made Exhibit B in the proceedings.

7. I am satisfied from the affidavits of Michael Brandon and Khaled Metlej, that the defendant has had full notice of the hearing today and that most of the evidence has been served on the defendant. More recent affidavits relating to service were not served.

8. I am satisfied from the affidavits, that the 11 November 2025 affidavit of Sevanthi Selvarajah was served on lawyers initially acting for the defendant, that a Notice of Ceasing to Act was served on the plaintiff on 18 December 2025 by the defendant’s solicitors, and by various letters, notice of the hearing today was given to the defendant at the address which was indicated by his former solicitors to be his relevant contact address.

9. The defendant was called outside three times today and there was no appearance by or on his behalf.

10. The Court has been assisted by a number of documents provided by the plaintiff, including:

(a) A chronology; (b) A memorandum of facts and issues; and (c) Written submissions.

11. The Court has had the opportunity prior to today to read those three documents.

12. As I have indicated above, the defendant in the Defence filed, indicates a defence of both a mental illness and also reliance on a third party. Despite what appears in the Defence, there is no affidavit or other documents sought to be relied upon by the defendant to support that pleading.

13. The only evidence before the Court is that which has been read or tendered by the plaintiff, Deputy Commissioner. Accordingly, there is no evidence justifying either of the defences pleaded, even if they constitute good defences to the claims.

14. In the affidavit of Sevanthi Selvarajah of 7 April 2026, there are annexed certificates signed by a Deputy Commissioner of Taxation setting out the amounts owing by the defendant as at 7 April 2026. I refer to those two certificates. Sevanthi Selvarajah states that the certificates are signed by a Mr Roberts, who Sevanthi Selvarajah indicates that they know to be a Deputy Commissioner of Taxation. It seems to me that taking into account s 350 of the Schedule 1 to the Taxation Administration Act 1953 (Cth) (“TAA”), the certificates are prima facie evidence of the matters referred to in them.

15. I note that under s 3AA of the TAA, it is indicated that Schedule 1 of the TAA has effect and also that an expression in Schedule 1 has the same meaning as in the Income Tax Assessment Act 1997 (Cth). That is relevant because of the wide definition of “taxation law” in s 995.1 of the Income Tax Assessment Act 1997. As I indicated, the certificates are, under s 350 of the TAA, prima facie evidence of their contents. In the submissions, the plaintiff refers to various authorities relating to the effect of such certificates.

16. I refer to the decision of Naumcevski v Deputy Commissioner of Taxation [2019] NSWCA 72 where the New South Wales Court of Appeal considered a case where there was a certificate under s 255, but also other substantial evidence. At paragraph 69, Leeming JA noted that the evidential matters he sets out in his judgment do not turn on the certificate, but his Honour stated:

“A certificate under s 255‑45 does not alter the legal burden of proof, although it may be determinative where the taxpayer does not go into evidence ... However, this was a case where both sides adduced testimonial and documentary evidence on the critical issue. The result in such a case is not determined by the certificate, but by the court’s evaluation of the competing evidence.”

17. In In the matters of Earth Civil Australia Pty Ltd [2021] NSWSC 966, Ward CJ in Eq handed down a lengthy decision, but at paragraph 2175, her Honour referred to Naumcevski without criticism, although her Honour noted that the section there under consideration, being s 255‑45 of the TAA had, by that time, been repealed.

18. The principles indicated by Leeming JA in Naumcevski, in my view, apply generally to certificates issued by the plaintiff or a second commissioner as being prima facie evidence as to their contents. As Leeming JA indicated, where there is no other evidence, these certificates may be determinative.

19. I take the two certificates into account in determining the amount outstanding from the defendant. I have also conducted a careful review of the documents relied on by the plaintiff in evidence which have been of assistance in determining the matter.

20. It is important to give some background to the claim by the plaintiff. The claim relates to the affairs of ML Burgers Pty Ltd (in liquidation). The evidence establishes that ML Burgers Pty Ltd was incorporated on 3 June 2019 (court book 57). The defendant, Vamsi Nammi, was appointed a director of ML Burgers Pty Ltd on 3 June 2019. According to the company search at p 58 of the court book, Vamsi Nammi remains a director of the company.

21. I am satisfied from the documents in the exhibit to the affidavit of Ms Sevanthi Selvarajah dated 11 November 2025, that various business activity statements were lodged on behalf of ML Burgers at the various times. They are set out as documents in the exhibit. I am also satisfied that GST returns were lodged for ML Burgers on the dates set out in the 11 November 2025 affidavit. For the reasons given in the submissions made on behalf of the plaintiff, I am satisfied that the defendant as a director became liable for penalties because of obligations under s 269 of Schedule 1 to the TAA to the Commissioner as the sums were not paid by ML Burgers.

22. On 24 February 2025, ML Burgers was wound up and Matthew Kucianski was appointed as liquidator to the company. Then, following that, with notices for payment having been issued by the plaintiff, the Statement of Claim was filed by the plaintiff on 8 May 2025, claiming the amounts sought.

23. I accept that the matters referred to in the plaintiff’s memorandum of facts and issues have been established on the evidence. Mr Olthof, who appears for the plaintiff, has assisted me by indicating where in the exhibit to the Selvarajah 11 November 2025 affidavit, the documents can be found establishing the amounts sought. It is submitted that the defence relied on in the Defence filed of illness and reliance on a third party is not properly to be relied on. I have examined s 269‑35 of the TAA and I am satisfied that the submissions made on this point are good. In any case, no affidavit evidence of the illness or reliance on the third party has been read before me as the defendant has not turned up.

24. Accordingly, I accept, having regard to the matters in the written submissions, and the certificates that are attached to the Selvarajah affidavit dated 7 April 2026, that the amounts in the certificates which reflect the submissions and the pleaded case, are owing to the plaintiff. The certificates provide prima facie evidence under s 350 of the TAA as to the amounts in question, and there is no evidence to the contrary. There is nothing in the exhibit to the Selvarajah 11 November 2025 affidavit which indicates to me that such figures are incorrect.

25. Accordingly, I am satisfied on the balance of probabilities that the defendant owes the amount sought in the certificates as reflected in the underlying evidence as director penalties which are payable to the plaintiff.

26. Therefore, for the reasons given, the defendant is liable for the total of the amounts claimed which take into account certain limited payments that have been made as set out in the Selvarajah 11 November 2025 affidavit.

27. In addition, interest is claimed for pre‑judgment interest as set out in the document which I have made Exhibit B. Looking at the document, it appears that the correct dates have been used from the commencement of proceedings to calculate the interest.

28. Accordingly, I find that the defendant owes the plaintiff the following sums:

(a) $351,749.36 for the director penalty sums, and (b) $25,369.23 for pre‑judgment interest.

The total of those sums is $377,118.68.

29. I order as follows

30. Leave is granted to the plaintiff to file in court the affidavit of Khaled Metlej dated 7 April 2026.

31. Judgment for the plaintiff against the defendant in the sum of $377,118.68 being $351,749.36 in the amount owing for directors’ penalties and $25,369.32 for pre-judgment interest.

32. The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

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Amendments

21 April 2026

Change to judgment heading