Deputy Commissioner of Taxation v Raskovic

Deputy Commissioner of Taxation v Raskovic - [2009] NSWSC 281 - NSWSC 2009 case summary — Zoe

[11]

JUDGMENT 1 HER HONOUR: These proceedings were commenced by statement of claim in November 2007. They concern unpaid income tax for the years ending 30 June 2000, 2001, 2002, 2003 and 2004 and primary tax due under the Business Activity Statement ('BAS') provisions of the Income Tax Assessment Act 1936 (Cth); as well as director penalties in relation to failures in respect of moneys withheld by Site Workforce Pty Ltd, and penalties flowing in relation to failure to lodge tax returns for the years ending 30 June 2002, 2003 and 2004, in accordance with the Taxation Administration Act 1953 (Cth). The total sum claimed was $776,450.24, plus interest and costs. 2 A defence was filed by the defendant in December 2007, in which various matters were raised, including a claim that certain notices relied on had not been served, so that penalties claimed were not due and that an agreement had been made by Site Workforce Pty Ltd with the Commissioner of Taxation under s 222ALA of the Income Tax Assessment Act. Certain amounts claimed by the plaintiff were also disputed and liability for the sums claimed was denied or not admitted, the defendant claiming that he had taken all reasonable steps to ensure that s 222AOB of the Income Tax Assessment Act had been complied with. 3 A notice of ceasing to act was filed by the defendant's solicitor in August 2008. There has since been no appearance for the defendant. There was evidence that the statement of claim was served personally on the defendant in 2007. The plaintiff's evidence in chief was served on the defendant's solicitors in August 2008, before they ceased acting. The defendant has not maintained an address for service on the Court file and correspondence sent to him at his last known address has been returned. In September 2008, the plaintiff filed a motion seeking orders striking out the defence and for judgment to be given in its favour, together with supporting affidavits. 4 The matter has been repeatedly before the Court since August 2008. There has been no appearance for the defendant on any of those occasions.

[12]

Service 5 There was evidence of considerable effort made by the plaintiff to locate the defendant after his solicitors ceased acting, in order to serve documents in the proceedings upon him personally and to inform him of the Court's directions and orders. Those efforts all failed. For abundant caution, at the hearing the plaintiff sought an order under Rule 10.14(3) of the Uniform Civil Procedure Rules 2005 ('the Rules'). The Rule provides: 10.14 Substituted and informal service generally (cf SCR Part 9, rules 10 and 11; DCR Part 8, rules 5 and 16; LCR Part 7, rules 5 and 16) (1) If a document that is required or permitted to be served on a person in connection with any proceedings: (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the manner provided by law, the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned. (2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time. (3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order. (4) Service in accordance with this rule is taken to constitute personal service. 6 That application must be approached consistently with the requirements of the Civil Procedure Act 2005. I am satisfied, having in mind that statutory scheme, especially what is required by s 56 as to the overriding purpose of the Act, namely the just, quick and cheap resolution of the real issues in the proceedings, that the order should be made. The requirements of ss 57, 58, 59 and 60 of that Act must also be borne in mind. They all point to the conclusion that justice requires that in the circumstances here before the Court, the order sought should be made. 7 That conclusion has particular regard to the fact that some of the documents which the plaintiff attempted to serve on the defendant were a motion and affidavits, as to which the Rules provide:

[33]

Consideration 20 The defendant has not appeared to resist the orders sought against him, or to advance his defence of the plaintiff's claims. The plaintiff's evidence in chief was served on his solicitors on 4 August 2008. Since 19 August 2008, when his solicitors filed a notice of ceasing to act, the matter has been before the Court on 3 and 17 September, 13 and 27 November and 8 December 2008. There was no appearance for or by the defendant on any of these occasions, nor did he appear at the hearing. The defendant has not been in contact with the plaintiff. He has taken no steps to maintain a current address for service on the Court file. 21 It may not be overlooked that since August 2008 the defendant has failed to take any steps to pursue his defence, to comply with the Court's directions, or to take any active part in the proceedings. The matter has come before the Court repeatedly, with no appearance for the defendant. All attempts to contact him have failed, so that that he could be informed that the plaintiff would press for judgment against him and that the updated information contained in Ms Meyer's affidavits as to the debt outstanding to the plaintiff could be served upon him. The earlier evidence as to that debt was served on the defendant before his solicitors ceased acting. 22 Even if the matters raised in the defence were arguable, the defendant has not taken available steps to defend the plaintiff's claims, even to appear before the Court, to pursue that defence. No evidence of the matters raised in the defence is before the Court. Certificates which evidence the defendant's debts to the plaintiff are in evidence. As the plaintiff submitted, under the statutory scheme, they establish a prima facie case which has not been challenged by the defendant. (See Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41 at [38] and Deputy Commissioner of Taxation v Lewer [2001] VSC 114 at [6], where the procedural advantages which the legislative scheme confers on the plaintiff are discussed.) 23 It follows that the plaintiff has established an unchallenged evidentiary basis for the orders sought. The matter must be dealt with in accordance with the provisions of the Civil Procedure Act. Section 56 of that Act is concerned with the just, quick and cheap resolution of proceedings. 24 Section 59 is concerned with elimination of delay and s 60 with proportionality of costs. Consistently with these statutory dictates, in the circumstances, the plaintiff having established a prima facie basis for the orders sought, there is no just reason for these orders being refused. 25 Costs must follow the event in the usual way.

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