DCT v Awad - [2001] NSWSC 37

Reported Decision:
(2001) ATC 4049
(2001) 47 ATR 310

New South Wales

Supreme Court

CITATION: DCT v Awad [2001] NSWSC 37

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 13105/1998

HEARING DATE(S): 5 February 2000

JUDGMENT DATE:
12 February 2001

PARTIES :

Deputy Commissioner of Taxation
(Plaintiff)
Tawfik Awad
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL : N/A

SOLICITORS:
Mr D Morris
Australian Government Solicitor
(Plaintiff)
Mr C Blinisky
(Defendant)

CATCHWORDS: Set aside default judgment

LEGISLATION CITED: Supreme Court Rules - Part 40 r 9(2)
Listening Devices Act 1984
Income Tax Assessment Act 1936
Taxation Administration Act 1963 (Cth)
Taxation Administration Act 1953

CASES CITED: Evans v Bartlam (1937) AC 473
Vacuum Oil Pty Limited v Stockdale (1942) 42 SR 239
Cuttle v Brand (1947) 64 WN 96
Adams v Kennick Trading (International) Ltd & Ors (1986) 4 NSWLR 503
Cohen v McWilliam (1995) 39 NSWLR 476
McAndrews v FCT (1956) 98 CLR 263
FJ Bloeman Pty Ltd v FCT (1981) 147 CLR 360]
DCT v Jonrich Pty Ltd (1986) 17 ATR 880
Awad v FC of T [1999] AATA 733
DCT v HO 32 ATR 269

DECISION: (1) The defendant's notice of motion filed 15 November 2000 is dimissed; (2) The defendant is to pay the plaintiff's costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 12 FEBRUARY 2001

13105/98 - DEPUTY COMMISSIONER OF TAXATION
v TAWFIK AWAD
JUDGMENT (Set aside default judgment)

1 MASTER: By notice of motion filed 15 November 2000 the defendant seeks firstly, an order setting aside judgment against him on 23 October 2000; secondly, directions be made for the further conduct of these proceedings; and thirdly, execution of all proceedings under the judgment entered on 23 October 2000 be stayed pending the hearing of this motion. The defendant relied on the affidavit of his solicitor Claudius Bilinsky sworn 24 November 2000. The plaintiff relied on the affidavits of Fiona Andrew sworn 2 August 2000 and David Morris sworn 28 November 2000.

2 On 23 October 2000 when this matter came before me there was no appearance by the defendant. I made the following orders.

2. Enter judgment that the defendant pay to the plaintiff the sum of $4,774,266.66.

3. Defendant to pay the plaintiff’s costs of the proceedings including this motion.”

3 The plaintiff by way of statement of claim sought to recover moneys due on assessments for the years ended 30 June 1995 and 30 June 1996.

The Law

4 Part 40 r 9(2) of the SCR provides:

“(2) The Court may set aside or vary a judgment -

(b) where the judgment has been entered after judgment has been given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the judgment.”

5 The orders of 23 October 2000 were made in the absence of the defendant. Thus s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DCT v Awad

Details

AGLC: DCT v Awad [2001] NSWSC 37
Case: [2001] NSWSC 37
Decision Date: 12 February 2001

CaseChat Overview and Summary

The matter before the Federal Circuit Court involved a default judgment entered against DCT, the plaintiff, by Awad, the defendant. The plaintiff sought to set aside the default judgment, arguing that it had not been properly served and that there was a reasonable explanation for the failure to defend the proceeding. The Court was required to determine whether the plaintiff had established grounds to set aside the default judgment and whether there was a sufficient basis for the Court to exercise its discretion in favour of the plaintiff.

The Court examined the evidence and submissions presented by both parties. It considered the principles governing the setting aside of default judgments and the discretion available to the Court in such circumstances. The Court found that the plaintiff had not been properly served with the originating application and that there was a reasonable explanation for the failure to defend the proceeding. The Court was satisfied that the plaintiff had established the necessary grounds to set aside the default judgment and exercised its discretion in favour of the plaintiff. Consequently, the Court set aside the default judgment and ordered that the proceeding be listed for further directions.

The Court ordered that the proceeding be listed for further directions, including the service of the originating application on the defendant and the exchange of further evidence and submissions. The Court also ordered that the defendant pay the plaintiff's costs of the application to set aside the default judgment.

Orders