Commissioner of Taxation v Bosanac (No 5)

In Commissioner of Taxation v Bosanac (No 5), the respondent sought to vary, set aside, or permanently stay a summary judgment previously granted in favour of the Commissioner of Taxation. The dispute centred around assessments that were amended subsequent to the summary judgment being issued. The primary legal issue before the court was whether the summary judgment should be altered given that the assessments upon which it was based had been amended. This issue was examined in the context of rules 39.05 and 41.03 of the Federal Court Rules 2011 (Cth).

The court found that while the power to vary or set aside a judgment after entry exists under certain conditions, this power should be exercised with caution and only in exceptional circumstances. The judgment in question was entered regularly after full argument and was not interlocutory as the respondent argued. Moreover, the subsequent assessments did not provide a sufficient basis to alter the judgment. The court held that exceptional circumstances had not been demonstrated, and thus the summary judgment should not be varied or set aside.

The court concluded that the application to vary, set aside, or stay the summary judgment should be dismissed. Additionally, the order that had stayed the execution of the judgment was declared discharged, effective from 29 August 2019. The court also directed the parties to provide a minute of proposed consent orders regarding the costs of the interlocutory application or, alternatively, to file submissions on costs within specified timelines.