Plaintiff v Defendant

1 By Writ and Statement of Claim filed 27 June 2016, the Deputy Commissioner of Taxation ("the Plaintiff") initially claimed that the Defendant, Mr Samuel Peregrine Lawson ("the Defendant") was indebted to the Commonwealth of Australia for the sum of $2,572,246.78 plus interest and costs. As a result of amendments to the pleadings, the Plaintiff now only seeks to recover the amount of $554,168.28 plus interest and costs from the Defendant in the proceeding ("the Debt").[1]

2 The Debt represents director penalty liabilities owed by the Defendant under Division 269 of Schedule 1 to the Taxation Administration Act 1953 ("the TAA") referable to the Superannuation Guarantee Charge ("the SGC") liabilities of Regent Personnel Pty Ltd (ACN 006 715 402) (in liq) as trustee of the Regent Personnel Unit Trust ("the Company") that were not remitted to the Plaintiff for the period 2012 to 2015 ("Relevant Period").

3 Records of the Australian Securities and Investments Commission ("ASIC") demonstrate that the Defendant was a director of the Company at all relevant times - particularly, during the Relevant Period - thus being under the relevant obligations that a director would usually be under during the Relevant Period.

4 The Defendant submits the three following points in defence of the Plaintiff':

(a) That the amounts and dates pleaded in the Plaintiff's claim are incorrect;[2]

(b) That there has been an incomplete satisfaction of the conditions precedent required by s 269-20 (1) of Schedule 1 of the TAA;[3] and

(c) That due to illness and/or for other good reason, the Defendant could not and/or did not take part in the management of the Company as he did not believe he was able to do so.

5 It was only during the trial of the proceeding, that the Defendant's claims were particularised in any way.

6 Division 269 of Schedule 1 to the TAA is concerned with the duties of company directors to ensure that the relevant company meets its obligation to pay certain amounts to the Plaintiff or is promptly placed into voluntary administration or liquidation. Those duties are enforced by penalties.

7 Section 269-15(1) requires a direction to cause the company to comply with its obligation, while s 269-15(2) sets out circumstances which will end the director's obligation:

(2) The directors of the company (from time to time) continue to be under their obligation until:

(a) the company complies with its obligation; or

(b) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Act 2001; or

(c) the company begins to be wound up (within the meaning of that Act).

8 Subsection 269-20(1) renders a director remaining under such an obligation at the end of the due day (being the day on which the company is obliged to make payment) liable to pay a penalty equal to the amount unpaid by the company.

9 Before bringing proceedings to recover a director penalty, the Commissioner must give a director penalty notice ("DPN") under s 269-25 of Schedule 1 to the TAA. Subsections (2) and (4) of that provision deal, respectively, with what must be in the notice and when it is taken to have been given and provide that:

Content of Notice

(2) The notice must:

(a) set out what the Commissioner thinks is the unpaid amount of the company's liability under its obligation; and

(b) state that you are liable to pay to the Commissioner, by way of penalty, an amount equal to that unpaid amount because of an obligation you have or had under this Division; and

(c) explain the main circumstances in which the penalty will be remitted.

...

When notice is given

(4) Despite section 29 of the Acts Interpretation Act 1901, a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.

10 The defences that can be raised in proceedings to recovery a penalty under Division 269 are prescribed in s 269-35, which relevantly provides:

(1) You are not liable to a penalty under this Division if, because of illness or for some other good reason, it would have been unreasonable to expect you to take part, and you did not take part, in the management of the company at any time when:

1. you were a director of the company; and
2. the directors were under the relevant obligations under subsection 269-15(1).

(2) You are not liable to a penalty under this Division if:

1. you took all reasonable steps to ensure that one of the following happened:
   1. the directors caused the company to comply with its obligation;
   2. the directors caused an administrator of the company to be appointed under section 436A, 436B or 436C of the Corporations Act 2001;
   3. the directors caused the company to begin to be wound up (within the meaning of that Act); or
2. there were no reasonable steps you could have taken to ensure that any of those things happened.

(3) In determining what are reasonable steps for the purposes of subsection (2), have regard to

1. when, and for how long, you were are a director and took part in the management of the company; and
2. all other relevant circumstances.

11 A person seeking to rely on the defences in s 269-35 bears the burden of proving the matters in that section.[4]

12 The Plaintiff plainly set out the elements of an effective defence to the Plaintiff's claim pursuant to s 269-35(4) of Schedule 1:[5]

[T]he defendant must not have participated in the management of the company at any time he was under the relevant obligations in section 269-15(1). Further, the non-participation for good reason (if found to exist) must cover the entirety of the period in which the obligation existed.[6]

13 The Plaintiff went on to submit that the Defendant's case "falls at both hurdles". I agree with that submission and the following reasons will explain why.

The recovery of tax-related liabilities and the conclusive evidence provisions

14 The liabilities of the Company to which the director penalty liabilities of the Defendant are the subject of are assessments issued pursuant to the Superannuation Guarantee (Administration) Act 1992 (Cth) ("the SGAA").

15 By reason of the operation of item 2 of s 350-10(1) of Schedule 1 to the TAA, the conclusive evidence provision, the Plaintiff submits that the assessments provide conclusive evidence that:

(b) Except in proceedings under Part IVC of the TAA on a review or appeal relating to the assessment, that the amounts and particulars of the assessment, declaration or notice are correct.

16 Further, it was submitted by the Plaintiff that s 350-10 of Schedule 1 to the TAA compels a court to treat a notice of assessment as conclusive evidence that the assessment has been duly made, and that the amounts and particulars in the assessment are correct, thereby foreclosing the issue except in proceedings under Part IVC of the TAA.[7] The operation of the conclusive provisions reflects a long-standing legislative policy to protect the interests of the revenue.[8]

17 The following principles are also relevant to the determination of this dispute:

(a) a tax-related liability that is due and payable is a debt to the Commonwealth and is payable to the Commissioner, who may recover any unpaid tax-related liability in a court;[9]

(b) statements or averments about a matter in the Plaintiff's complaint, claim or declaration is prima facie evidence of the matter;[10]

(c) an evidentiary certificate (stating, for example, that the person named in the certificate has a tax-related liability, that an assessment relating to a tax-related liability has been made or that a notice of an assessment was, or is taken to have been served on the person) is prima facie evidence of the matters stated;[11]

(d) evidence is permitted to be given by way of affidavit in a proceeding to recover a tax-related liability.[12]

18 The amounts claimed by the Plaintiff in the proceeding are tax-related liabilities.[13]

19 The use of evidentiary certificates and the other prima facie provisions in Commonwealth taxation legislation has been widely accepted by the courts.[14] As noted by Bongiorno J in Deputy Commissioner of Taxation v Lewer:[15]

The Deputy Commissioner of Taxation enjoys a number of procedural advantages over ordinary litigants conferred upon him by the legislation which permits tax to be collected and arranges for the mechanism to do so. One of those advantages is the ability to conduct a trial of this nature on affidavit, provision being found in s 255-55 of Schedule 1 of the Taxation Administration Act 1953 (Commonwealth) which provides a number of items of administrative assistance to the Commissioner in proving his claim. For one thing, as I have indicated, he can proceed by way of affidavit. Secondly, he can proceed by way of an evidentiary certificate which provides prima facie evidence of the matters contained in it including matters relating to the service of assessments, the quantum of assessments and the total amount owing.

20 Division 269 of Schedule 1 to the TAA imposes a duty on directors to ensure a company meets its obligations, or promptly goes into administration or liquidation. The failure to comply is sanctioned by penalties imposed on directors personally. When this occurs, the director's penalty operates in parallel with the existing liability owed by the company, so that a reduction of one liability reduces the parallel liability to the same extent.

21 The Defendant was appointed director of the Company on 10 January 1997 and has been a director since that date.

22 While the Defendant was a director of the Company, the Company failed to pay SGC amounts for the quarters ended 30 September 2013, 20 June 2014, 30 September 2014 and 31 March 2015. Relevantly in this regard:

(a) The Plaintiff made amended assessments pursuant to s 30 of the SGAA of the Company's superannuation guarantee shortfall and of the SGC payable on the shortfall for the quarters ending on 30 September 2014 and 30 September 2014.

(b) The Plaintiff also made a default assessment pursuant to s 36 of the SGAA of the Company's superannuation guarantee shortfall and of the SGC payable on the shortfall for the quarter ending on 31 March 2015.

23 Details of the Company's liabilities under ss 36 and 37 of the SGAA, together with details of the due day pursuant to s 269-10(3) of Schedule 1 to the TAA are set out below:[16]

Relevant Quarter (the initial day was the day the quarter ended)

Date pursuant to s 269-10(3, Sch 1 TAA 1953

24 The Company's obligation is set out in item 5 of s 269-10(1) in Schedule 1 to the TAA to pay to the Commissioner on or before the "due day" the SGC for the quarter in accordance with the SGAA.

25 At the end of each due day, the Defendant was in respect of each amount of SGC still under an obligation under s 269-15 of Schedule 1 to the TAA to cause the company to comply with its obligations under the SGAA because:

(a) The Company had not complied with its obligation under the SGAA to pay the Commissioner the SGC;

(b) An administrator of the Company had not been appointed under s 436A, s 436B or s 436C of the Corporations Act 2001 ("the Corporations Act"); or

(c) The Company had not begun to be wound up within the meaning of the Corporations Act.

26 As a result of the failure of the Company to pay SGC, the Defendant became liable to pay to the Plaintiff a penalty of an amount equal to each unpaid amount of SGC under s 269-20 of Schedule 1 to the TAA. This liability is subject to the defences the Defendant raised which will be discussed in the reasons which follow.

27 A DPN does not itself impose a liability or create a right of action but is a requirement before commencing proceedings to recover the penalty.[17] There are two DPN's relevant to this proceeding.

28 The First DPN concerns the first three amounts of SGC in the table at paragraph 23 above. The Second DPN concerns the fourth.

29 ASIC extracts for the Company dated 7 March 2017, 31 August 2015 and 19 November 2015 show that:[18]

(a) the Company was incorporated in Victoria on 5 March 1987;

(b) the Defendant was appointed director of the Company on 10 January 1997 and as a director continuously from that time; and

(c) the Defendant's address was 2A Quamby Avenue, South Yarra VIC 3141.

30 Pursuant to s 269-50 of Schedule 1 to the TAA, the Plaintiff may give a DPN by leaving it at, or posting it to, an address that appears from information held by ASIC to be the director's place of residence.

31 The First DPN was given to the Defendant at his address as according to the ASIC records as at 31 August 2015.[19]

32 The validity of service of the First DNP was not in issue at trial. Accordingly, the first, second and third amounts of SGC in the table above, totalling $522,302.19 is due and payable to the Plaintiff unless any other defence under the TAA applies.

33 The ASIC extract obtained dated 19 November 2015 showed the Company's status as "Under External Administration And/Or Controller Appointed".[20]

34 As at that date, ATO records showed that the Defendant's residential address was 11 Larnook Street, Prahran VIC 3181 ("the Larnook Street address").[21]

35 The Second DNP was given to the Defendant at this address.[22] At no stage in his evidence, did the Defendant say that he did not receive the Second DPN. The evidence was that he was not familiar with the Larnook Street address and had never lived there.[23]

36 For the following reasons, there is no reason to question that the Second DPN was properly given:

(a) Section 269-25(4) deems a director penalty notice to be given at the time it was posted. The unchallenged evidence of Douglas Smith demonstrates that the Second DPN was posted on 19 November 2015.

(b) The Defendant accepted that his tax returns for the years ending 30 June 2013[24] and 30 June 2014[25] gave his address as the Larnook Street address.[26] Exhibits P2 and P3 show that the Defendant's tax agent gave the Defendant's address as the Larnook Street address for two consecutive years.

(c) As a result of the provision of this address to the Australian Taxation Office ("the ATO"), the Larnook Street address was recorded in the ATO's records as the address of the Defendant.

(d) As set out in his affidavit of 8 March 2017, as the company had been wound up by the time the Second DPN was sent, Mr Smith elected to send the Second DPN to the Larnook Street address which he established from the ATO's records as the Defendant's address.

(e) While s 269-50 of Schedule 1 of the TAA provides that a DPN may be given at an address for a director appearing in ASIC records, it does not require the DPN to be given at such an address.

(f) Section 28A of the Acts Interpretation Act 1901 (Cth) permits service of a document by post on the "place of residence ... last known to the person serving the document". The Larnook Street address was the Defendant's address provided by the Defendant by his tax agent and could therefore be used as the last known address of the Defendant. The Note to s 269-25(4) provides that s 28A may be relevant to the giving of a DPN.

(g) The Plaintiff was entitled to post the Second DPN to the Larnook Street address because of s 12D of the then applicable Taxation Administration Regulations 1976 (Cth) ("the TAR") which provided:

(1) This regulation applies if:

1. a person has not given the Commissioner a preferred address for service; or
2. the Commissioner is satisfied that none of a person's preferred addresses for service is effective.

(2) If the Commissioner has a record of another address relating to the person (whether or not a physical address), and it appears to the Commissioner that it is likely that the address is effective, the Commissioner may treat that address as the person's preferred address for service for all purposes under the taxation laws.

37 The Defendant's mere assertions as to not having received the Second DPN are not sufficient to displace the deeming effect of s 269-25(4). In any event, an assertion of non-receipt is not sufficient to establish the non-delivery of the Second DPN.[27] The Larnook Street address, provided by his tax agent in tax returns lodged on the Defendant's behalf, was both the place of residence last known to the Commissioner for the purposes of s 28A of the Acts Interpretations Act 1901 (Cth) and his preferred address for service for the purposes of s 12D of the TAR.

38 As at the dates of 21 September 2015 and 10 December 2015 respectively, the Plaintiff was entitled to commence proceedings against the Defendant to recover the penalty amounts.

39 As discussed above, a complete defence against the recovery of penalty amounts under Division 269 are prescribed in s 269-35.

40 For the preceding reasons I find that the Second DPN was validly served on the Defendant. Accordingly, the amount of $31,866.09 is due and payable to the Plaintiff unless any other defence under the TAA applies.

41 The Defendant led evidence that due to a series of truly unfortunate events,[28] being defrauded being one such event, his mental health was so affected that he could not cope and was unable to run things and needed a period out of the business.[29]

42 Mr Watson-Munro, consulting psychologist, gave evidence on behalf of the Defendant that in his opinion, the Defendant was suffering from a depressive condition when he met with him on 6 October 2017 and said that this was a contemporary diagnosis. He agreed in cross examination that he could not express a concluded view about the Defendant's psychiatric state during the Relevant Period.

43 When questioned directly about the Relevant Period, Mr Watson-Munro confirmed that he could only express a view on the Defendant's psychiatric state for a fortnight before 6 October 2017 and no earlier.

44 The witness did not provide any persuasive evidence that the Defendant was under such a disability caused by his mental health during the Relevant Period to prove that the Defendant did not participate in the management of the company for that time. Such evidence as there was could only be described as self-serving assertions - none of which, as indicated, were supported by expert psychologist evidence with respect to the Relevant Period.

45 The test for whether a reason for non-participation is "good" was stated by Harrison J in Deputy Commissioner of Taxation v Robertson[30] as:

The reason advanced must objectively be a good reason. For example, a total failure to participate for whatever reason should not be regarded as a 'good reason'.[31] In determining what may be a good reason for not participating in the management of a company, regard must be had to the high standards of care and skill now required of directors. The plaintiff submitted that a director who by a course of conduct is inattentive to the affairs of the company is unlikely to have the benefit of this defence. For example, it would not be sufficient if the director held a genuine view that he or she had good reason for not participating unless it were a 'good reason' when view objectively.

46 The evidence of Mr Watson-Munro does not, for the reasons indicated, support the position advanced by the Defendant that his mental health during the Relevant Period, when the Defendant was under the relevant obligations, prevented him from participating in the management of the Company.

47 Evidence at trial was that the Defendant had engaged others to manage the affairs of the Company on his behalf and then apparently paid little attention to what those others were doing. The Plaintiff submits that this was a "fundamental dereliction of his responsibilities as a director, particularly in circumstances where the Defendant was the sole director of the Company, and there was no doubt that he knew that he was a sole director".[32]

48 The Defendant led evidence that in June 2012 he was introduced to Watermans/BPO Connect Accountants & Advisers and met with Mr Nayantaka Arjuna Samarakoon and Mr Anthony Cefala who then worked on what the Defendant described as the "immediate needs of the business".[33]

49 It was submitted that in late 2012 the decision was made that Mr Anthony Cefala would step into a manager role, for a fee, as the Company was considered to be "small" and had relatively fixed revenue and expenses.[34]

50 The Defendant and Mr Anthony Cefala gave evidence that from this time onwards, the Defendant would attend the office to sign documents as needed. Moreover, the Defendant gave further evidence that he would sign blank superannuation contribution declarations for them to be filled out at a later date by Mr Cefala.[35]

51 The Defendant's failure to take part in the management of the company was seemingly because he thought others were taking care of its financial affairs. This, however, does not constitute "good reason" for lack of participation. As stated in Deputy Commissioner of Taxation v Stenner:[36]

It is difficult for a director to escape liability. A director has to show that he or she took no part in the management of the company, and did not do so for some good reason. The fact that he or she was not immediately interested in the financial affairs of the company does not matter, because of the strict requirement of s 222AOJ(2).

52 In Clarke, a husband and wife were directors of a company. The wife had left all responsibility of managing the affairs of the company to her husband, but both were sued by the Deputy Commissioner under s 588 FGA of the Corporations Act. Section 588 FGB(5) of the Corporations Act provided that it was a defence to the Deputy Commissioner's claim for indemnity under s 588 FGA if it is provided that "because of illness or for some other good reason" the person did not take part in the management of the company at the relevant time. In considering the operation of the defence, Spiegelman CJ said:[37]

1. What constitutes breach of the standards of care and of diligence, in a particular case, will depend on a wide variety of circumstances including the precise nature of the business conducted by the company ... However, the case law indicates that there is a core, irreducible requirement of involvement in the management of the company.

1. [T]he words "good reason" must be read down so that they do not conflict with the obligation of directors generally to participate in the management of the company.

1. [R]easons which cause a director never to participate in management are not capable of constituting "good reason" for not participating at a particular point in time.

1. In my opinion, there is no justification for a doctrine which would old sleeping directors to be "de facto directors", who should be relieved of their liabilities. Although, as a practical matter, the conduct of such directors may never meet the requisite standard of participation in management, such conduct should not be excused as a "good reason" in law.

53 In Deputy Commissioner of Taxation v Holton, Judge Kennedy (as her Honour then was) considered and applied Clark. Her Honour said:[38]

[A]s stated in Deputy Commissioner of Taxation v Clarke non-participation per se is impermissible. Accordingly, reasons which cause a director never to participate in management are not capable of constituting "good reason" for not participating.

54 The evidence demonstrated that the Defendant attended meetings in person with the ATO at which the ATO's audit of the Company's superannuation obligations was discussed on the following dates:

55 In cross-examination, Mr Cefala agreed that the ATO had identified problems with the Company's superannuation obligations in his and the Defendant's presence.

56 The Defendant gave evidence that he signed documents which led to the winding up of the Company immediately prior to or on 16 September 2015.[43] Such an act is a clear step in the management of the Company. The Defendant also gave evidence that at various times whilst under the relevant obligations, he signed documents in his position as a director of the company and attended the offices of the Company and of its accountants.[44]

57 The Defendant was the only director of the Company, and agreed that there were no other directors with whom he had to caucus in order to make decisions in respect of the company's affairs. In that context, his participation in meetings with the ATO about the taxation affairs of the Company does, in my view, constitute participation in the management of the Company.[45]

58 The Plaintiff submits that the defence of non-participation due to illness or other good reason is not available to the Defendant because of his participation in the management of the Company while he was under the relevant obligations. I agree with the Plaintiff, even if for some good reason it might have been unreasonable to expect the Defendant to participate in the management of the Company.[46]

59 The Defendant was undoubtedly aware that the Company had serious compliance problems with its obligations to the ATO whilst the Company and he were under the Relevant Obligations. The Defendant's conduct fell well short of the objective standards of conduct which applied to him in the face of what he actually knew about the Company's compliance problems with the ATO. This is especially so when he was the sole director of the Company and participated in several meetings with the ATO about an audit of the Company's compliance with its superannuation guarantee obligations. More particularly, I consider that the Defendant's evidence that he signed blank superannuation guarantee charge forms "exemplified his reckless indifference to the discharge of his duties as director".[47]

60 For the preceding reasons, I find for the Plaintiff. The claimed amount of $554,168.28 is due and payable plus any interest pursuant to s 60 of the Supreme Court Act 1986.

61 The parties are to bring in orders to give effect to these reasons. I otherwise reserve the question of costs.

62 Additionally, having regard to evidence in these proceedings with respect to the conduct of the affairs of the Company, I will forward a copy of these reasons (and make papers available) to the Australian Securities and Investments Commission.

[1] Further Amended Statement of Claim (11 September 2017).

[2] Amended Defence (2 December 2017), [2], [3], [5], [7], [8], [9], [10].

[3] Amended Defence (2 December 2017), [4].

[4] Taxation Administration Act 1953, sch 1 s 269-35(4).

[5] Plaintiff's Final Written Submissions (24 November 2017), [20].

[6] Deputy Commissioner of Taxation v George [2002] NSWCA 336; (2002) 55 NSWLR 511 at 518-9 [26]-[27].

[7] FJ Bloeman Pty Ltd v Federal Commissioner of Taxation [1981] HCA 27; (1981) 147 CLR 360 at 375; Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168 at 184; Deputy Commissioner of Taxation v Loftus [2002] VSC 68, [18]; Deputy Commissioner of Taxation v Feldman [2006] NSWSC 378, [9].

[8] Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473.

[9] Taxation Administration Act 1953, sch 1 s 255-5.

[10] Taxation Administration Act 1953, sch 1 s 255-50.

[11] Taxation Administration Act 1953, sch 1 s 255-45(1).

[12] Taxation Administration Act 1953, sch 1 s 255-55.

[13] See Taxation Administration Act 1953, sch 1 s 250-10 (item 139).

[14] Deputy Commission of Taxation v Todisco [2004] VSC 93, [6], [18]; Deputy Commissioner of Taxation v Hooper [2005] VSC 69, [6]; Trade World Enterprise Pty Ltd v Deputy Commissioner of Taxation [2006] VSCA 191, [10]-[11]; Deputy Commissioner of Taxation v Epov [2008] NSWSC 1085, [24], [32]; Deputy Commissioner of Taxation v Raskovic [2009] NSWSC 281; (2009) 75 ATR 359 at 364 [22]; Commissioner of Taxation v Orenelas [2016] FCA 457, [7]-[10].

[15] [2001] VSC 114, [6].

[16] Plaintiff's Final Written Submissions (24 November 2017), [5].

[17] Deputy Commissioner of Taxation v Woodhams [2000] HCA 10; (2000) 199 CLR 370 at 378, 384 [19], [35].

[18] Affidavit of Douglas Smith (8 March 2017), exhibits DS-1, DS-7 and DS-10 ("the Smith Affidavit").

[19] Affidavit of Douglas Smith (8 March 2017), [23]-[25].

[20] Affidavit of Douglas Smith (8 March 2017), exhibit DS-10.

[21] Affidavit of Douglas Smith (8 March 2017), exhibit DS 11.

[22] Affidavit of Douglas Smith (8 March 2017), [29]-[37].

[27] See Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87.

[28] Defendant's Outline of Opening Submissions (13 November 2017), [2]-[23].

[29] Defendant's Outline of Opening Submissions (13 November 2017), [26].

[30] [2009] NSWSC 597; (2009) 234 FLR 35 at 66-67 [102].

[31] Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 ("Clarke").

[32] Plaintiff's Final Written Submissions (24 November 2017), [28].

[33] Defendant's Final Written Submissions (20 November 2017), [3].

[34] Defendant's Outline of Opening Submissions (13 November 2017), [26].

[36] [2003] QDC 53; (2003) 53 ATR 316 at 320 [32].

[37] Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at 140-9 [108], [124], [133], 167].

[38] [2016] VCC 516, [50].

[42] Transcript at 55-57; and see CB 189.

[44] Affidavit of Samuel Peregrine Lawson (5 May 2017), [35].

[45] See Deputy Commissioner of Taxation v Lister & Anor [2002] QCA 270, [14].

[46] This was the formulation of the defence given by Judge Kennedy (as her Honour then was) in Deputy Commissioner of Taxation v Holton [2016] VCC 516, [55].

[47] Plaintiff's Final Written Submissions (24 November 2017), [38].