Cassaniti v Deputy Commissioner of Taxation
[2008] FMCA 1377
•23 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CASSANITI v DEPUTY COMMISSIONER OF TAXATION | [2008] FMCA 1377 |
| BANKRUPTCY – Refusal to adjourn application to set aside bankruptcy notice. |
| Federal Magistrates Court (Bankruptcy) Rules 2006 |
| Applicant: | PATRICIA GIULIANA CASSANITI |
| Respondent: | DEPUTY COMMISSIONER OF TAXATION |
| File Number: | SYG 1514 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 September 2008 |
| Date of Last Submission: | 23 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fordyce |
| Solicitors for the Applicant: | Proctor & Associates |
| Counsel for the Respondent: | Mr R Quinn |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs to be taxed if not agreed pursuant to Federal Magistrates Court (Bankruptcy) Rules 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1514 of 2008
| PATRICIA GIULIANA CASSANITI |
Applicant
And
| DEPUTY COMMISSIONER OF TAXATION |
Respondent
REASONS FOR JUDGMENT
This is an application to set aside a bankruptcy notice in which the Deputy Commissioner of Taxation is claiming the sum of $2,538,274.95 pursuant to a judgment of the Supreme Court of New South Wales dated 18 March 2008 together with some interest thereon. The bankruptcy notice was issued on 30 May 2008 and the application to set it aside was issued in this court on 13 June 2008.
The matter first came before the court on 24 June 2008 when Registrar Hedge made orders adjourning the matter until 8 July presumably to allow time for the applicant to file some evidence. On 8 July the matter was further adjourned until 22 July and on that day Registrar Segal made a number of orders including:
(1)That the applicant file all affidavits upon which she relies by 13 August 2008;
and set the matter down for hearing today.
When the matter was called on for hearing today, Mr Fordyce appeared on behalf of the applicant. He told me that he had only received instructions from a Mr Kekatos, solicitor, last night and that he did not have with him any affidavit from the applicant but he said that his instructions were that the principal tax debt had been paid by third parties associated with the debtor and therefore there was no tax owing and no interest charge or penalty owing either.
I fully accept that if tax has been paid in good time then no penalties will attach but I have no evidence that this has occurred in this particular case and I have no evidence as to why the orders of Registrar Segal were not complied with. What I do have is a judgment of the Supreme Court of New South Wales and a Deputy Commissioner of Taxation who believes that he is entitled to enforce his judgment by commencing these proceedings.
In the circumstances there is no evidence which would allow me to set aside the bankruptcy notice and I do not believe it is appropriate, given the number of times this matter has come before the court and the total absence of any compliance with orders, that I should further adjourn the matter.
I dismiss the application. I order the applicant pay the respondent’s costs to be taxed if not agreed pursuant to Federal Magistrates Court (Bankruptcy) Rules 2006.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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