D.C.T. Willis

[2007] FMCA 579

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEPUTY COMMISSIONER OF TAXATION v WILLIS [2007] FMCA 579

BANKRUPTCY – Creditor’s petition – founded on taxation debt – dispute as to whether notices of assessment were served or required to be served on debtor.

BANKRUPTCY – Application to set aside bankruptcy notice – out of time.

Bankruptcy Act; s 52
Taxation Administration Act 1953; Schedule 1, ss.105-20, 250-1, 255-5, 255-45, Part 4-5
Income Tax Assessment Act1936; ss.173, 174, 177  
Acts Interpretation Act 1901; ss 28A, 29
Evidence Act 1995, ss.147, 160, 182
Federal Magistrates Court Rules; Rule 17.03
Taxation Administration Regulations; Regulation 12F

Re Duckworth; ex parte Lockett, French J, 12 February 1987;
Re Shaddock; ex parte Commonwealth Bank of Australia, Goldberg J, 9 April, 1998;
Brookfield v Yevad Products Pty Ltd (2002) 192 ALR 111;
Guss v Johnstone (2000) 171 ALR 598
Clyne v DCT (1983) 57 ALJR 673;
Re Trevaskis (1993) 27 ATR 102
James v Deputy Commissioner of Taxation (1957) 97 CLR 23
DCT (NSW) v Taylor (1983) 14 ATR 567
Briggs v DCT (WA) (1986) 17 ATR 1140;
Sunrise Auto Ltd v DCT (1994) 28 ATR 496
Prestige Motors v FCT (1994) 181 CLR 1
Re Beavis Bros Construction Pty Ltd (in liq) (1987) 10 NSWLR 1
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Applicant: DEPUTY COMMISSIONER OF TAXATION

Respondent: KENNETH LINDSAY WILLIS

File number: BRG670 of 2006

Judgment of: Wilson FM

Hearing date: 16 March 2007

Date of last submission: 16 March 2007

Delivered at: Brisbane

Delivered on: 23 April 2007

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: N/A

The Respondent: Mr Willis in person

ORDERS

1. The respondent’s application to set aside the bankruptcy notice be dismissed.

2. The separate question be answered as follows:

   The respondent was required to be served with notices of amended assessment issued by the applicant on 16 March 2006, and was so served.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG670 of 2006

DEPUTY COMMISSIONER OF TAXATION

Applicant

And

KENNETH LINDSAY WILLIS

Respondent

REASONS FOR JUDGMENT

1. This application highlights the dangers of a slavish adherence to precedent, and the reliance upon statutory presumptions.  On 2 March 2007 I ordered that the issue of whether the respondent was served or required to be served with notices of amended assessment be determined as a separate question pursuant to Rule 17.03 Federal Magistrates Rules, and that such question be heard contemporaneously with the respondent’s application to set aside the bankruptcy notice admittedly served upon him.

2. On 19 September 2006 the applicant creditor presented a creditor’s petition seeking a sequestration order against the estate of the respondent.  That creditor’s petition was founded upon an act of bankruptcy committed by the respondent in failing to comply with a bankruptcy notice served upon him on 2 August 2006.  That bankruptcy notice was, in turn, based upon a default judgment of the District Court of…