DCT v Truden
[2020] VCC 324
•18 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-02319
| Deputy Commissioner of Taxation | Plaintiff |
| v | |
| Stephen Truden | Defendant |
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JUDGE: | Judicial Registrar Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2020 | |
DATE OF RULING: | 18 May 2020 | |
CASE MAY BE CITED AS: | DCT v Truden | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 324 | |
REASONS FOR RULING
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Subject: Taxation – Civil Procedure - Summary judgment
Catchwords: Director’s penalty; failure to cause company to pay estimate of PAYG; failure to cause company to pay superannuation guarantee charge; defence of illness; defence of all reasonable steps; summary judgment
Legislation Cited: Civil Procedure Act 2010 (Vic) ss 63 and 64; Superannuation Guarantee (Administration) Act 1992 (Cth); Taxation Administration Act 1953 (Cth), Schedule 1, Division 269
Cases Cited:Buzadzic v Deputy Commissioner of Taxation [2020] HCA 52; Deputy Commissioner of Taxation v Buzadzic [2019] VSCA 221; Snell v Deputy Commissioner of Taxation [2020] NSWCA 29
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APPEARANCES: | Solicitors | |
| For the Plaintiff | Ms W Tai and Mr V Tavolaro | Australian Government Solicitors |
| For the Defendant | Mr S Truden (In person) |
JUDICIAL REGISTRAR:
1. The Deputy Commissioner of Taxation (“DCT”) has applied for summary judgment against the Defendant. The Defendant was the director of Truscaff Scaffolding Pty Ltd (“Truscaff Scaffolding”). The DCT claims payment of penalty against the Defendant under s 269-20 of Schedule 1 of the Taxation Administration Act 1953 (Cth) (“Sch 1 of the TAA”) arising from his time as a director of Truscaff Scaffolding.
2. The first claim for penalty is in the amount of $55,100 and is said to arise from the Defendant’s failure to cause Truscaff Scaffolding Pty Ltd to pay the amount of the estimated liability for PAYG tax withheld for the periods 1 June 2012 to 30 June 2012 and 1 December 2012 to 31 December 2012 (“PAYG estimate amounts”).
3. The second claim for penalty is in the amount of $136,119.61 (“SGC amounts”) and is said to arise from the Defendant’s failure to cause Truscaff Scaffolding to comply with its obligation under the Superannuation Guarantee (Administration) Act 1992 (Cth)(“SGAA”) to pay Superannuation Guarantee Charge with respect to the following quarters:
a. 1 April 2012 to 30 June 2012;
b. 1 July 2012 to 30 September 2012; and
c. 1 October 2012 to 31 December 2012.
4. The Defendant raises essentially three forms of defence to these claims:
a. denial that Deputy Commissioner has proven the facts necessary to establish his liability for the penalties;
b. reliance upon positive defences of ill-health and reasonable steps; and
c. what he terms his “initial defence” which alleges what he describes as “reprehensible conduct” including:
“Act of Misnomer…Unlawful conduct…Notice of Constitutional Matter, Defendant natural living being name has secretly already been bankrupted…Unlawful and Criminal conduct by the Office of the Deputy Commissioner…Intellectual Property theft…Serious violations of foreign ownership and investment laws..Betrayal of the Sovereign citizens of Australia…Collusion with multiple Government Agencies and Departments to defaud the Commonwealth and the Commonwealth citizens…Contempt of Court and the perverting of Justice…Perjury…Predatory practices…Fraudulent manufacture and production of documents…Conflict of interest having colluded with private enterprises and large corporate organisations to defraud assets held in defendant’s Trust…DCT v Budzadzic….Countless Human Rights violations upon the Defendant…Wholesale theft, swindle and plunder of the Defendants Trust Assets…the assistance of the Office of the Deputy Commissioner of Taxation in facilitating this…Collusion with the Adminstrator to defraud and financially destroy the defendant…Collusion with the four big Banks in Australia to sell abroad the Sovereign wealth of this nation and its Sovereign people’s…Deception..Corruption of the Executive and the Ministers of Departments charged with the responsible administration of the Nations essential departmental functions and services…Systematic abuse of Suppression orders in multiple State and various Court jurisdictional tiers to hide involvement of wholesale theft of Real Property Assets from the Defendant…Conspiracy…Treason.”
5. I will deal first with the question of whether the DCT has established a prima facie claim for penalty, before considering the positive defences raised and, finally, turning to the Defendant’s “initial defence”.
Has the Deputy Commissioner established a prima facie claim for penalty?
Protection of the revenue by imposing a penalty on directors of non-complying companies
6. Division 269 of Sch 1 of the TAA imposes penalties on directors who have failed to cause the company to comply with its obligations. The purpose of Division 269 is
“to protect the revenue, by making directors of non-remitting corporate employers liable to penalties equivalent to the amounts which the corporation fails to remit”.[1][1] Snell v Deputy Commissioner of Taxation [2020] NSWCA 29 at [20], applying Deputy Commissioner of Taxation v Woodhams (2000) 199 CLR 370 at 376; [2000] HCA 10 [13] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
7. The Division applies (relevantly) to:
a. an obligation to pay the amount of an estimate made under Division 268 of Sch 1 of the TAA (s 269-10(4)); and
b. the obligation to pay superannuation guarantee charge for a quarter (s 269-10(1) (Item 5)).
8. Each relevant obligation to which Division 269 applies has a specific “initial day” and a “due day”. Section 269-15 provides that:
“The directors…of the company (from time to time) on or after the initial day must cause the company to comply with its obligation”.
The obligation on a director of the company to cause the company to comply with an obligation with respect to (relevantly) PAYG withholding or superannuation guarantee charge thus commences on the “initial day” and is ongoing until the company complies with its obligation; an administrator of the company is appointed; or the company begins to be wound up (Sch 1 of the TAA, s 269-15(2)).
Sub-section 269-20(1) provides that a person is liable to pay a penalty if, by the end of the due day:
a. the company is still under the obligation (i.e. the amount owing has not been paid); and
b. the person was under the obligation because they were a director at or before that time (effectively, at any time between the initial day and the due day).
The penalty is due and payable at the end of the due day.[2]
PAYG estimate amounts
[2] Sub-s 26 9-20(2) of Sch 1 of the TAA.
Sub-section 16-70(1) of the TAA requires a person to pay PAYG amounts withheld to the Commissioner. Section 268-10 of Sch 1 of the TAA empowers the Commissioner to estimate the unpaid and overdue liability of the person under s 16-70. If the Commissioner gives a person notice of the estimate in accordance with s 268-15, the person must then pay the Commissioner the amount of the estimate.
The DCT has put in evidence two estimate notices which were sent to Truscaff Scaffolding on 27 June 2013:[3]
[3] The Affidavit of Namitesh Prasad affirmed 18 February 2020 incorrectly states that the notices were dated and sent on 27 July 2013. This was ultimately corrected in the Affidavit of Namitesh Prasad affirmed 6 May 2020.
a. the first is a Notice of Estimate dated 27 June 2013 with respect to the period of withholding from 1 June 2012 to 30 June 2012 (“the First Notice of Estimate”). The amount specified in the First Notice of Estimate is $26,774; and
b. the second is a Notice of Estimate dated 27 June 2013 with respect to the period of withholding from 1 December 2012 to 31 December 2012 (“Second Notice of Estimate”). The amount specified in the Second Notice of Estimate is $28,326.
Sub-section 268-20(2) of Sch 1 of the TAA states that the liability to pay the amount of the estimate is separate and distinct from the underlying liability.[4] There is therefore no obligation upon the DCT to prove the underlying liability to pay PAYG withheld.
[4] See further s 268-25 which states, “You are liable to pay the unpaid amount of the estimate even if: (a) the underlying liability never existed or has been discharged in full; or (b) the unpaid amount of the underlying liability is less than the unpaid amount of the estimate”.
The DCT also relied upon a certificate under s 255-45 of Sch 1 of the TAA dated 6 May 2020 that the First Notice of Estimate and Second Notice of Estimate had been served.[5]
[5] Exhibit “NP-14” to the Affidavit of Namitesh Prasad affirmed 6 May 2020.
I am satisfied that Truscaff Scaffolding was under an obligation to pay a total of $55,100 under the two estimates made by the DCT. The due date of those payments was the date the notice was given.[6] Under s 268-15(4) of Sch 1 of the TAA, a notice under s 268(15)(1) is taken to be given at the time the Commissioner leaves or posts it. The evidence[7] ultimately relied upon on behalf of the DCT is that both Notices of Estimate were posted on 27 June 2013. Accordingly, the payments were due on 27 June 2013.
[6] Sch 1 of the TAA, s 268-20(1).
[7] Exhibit “NP-14” to the Affidavit of Namitesh Prasad affirmed 6 May 2020.
The uncontradicted evidence filed on behalf of DCT was that Truscaff Scaffolding failed to pay these amounts. A Running Balance Account Statement for the Truscaff Scaffolding was exhibited.[8] Under s 8AAZI of the TAA, that statement is prima facie evidence that the amounts and particulars are correct. The Running Balance Account Statement accounts for the specific payments relied upon by the Defendant in his Further and Better Particulars. The Defendant also made general assertions of “almost half a million dollars of unpaid invoices” and “three hundred thousand dollars missing” from Truscaff Scaffolding. But as he frankly conceded during the course of oral submissions, it appeared the DCT’s table was correct, or that at least he did not have the evidence to contradict it.
[8] Exhibit “NP-11” to the Affidavit of Namitesh Prasad affirmed 4 March 2020.
The Defendant was appointed as a director of Truscaff Scaffolding on 27 June 2011 and ceased to be a director on 10 May 2015.[9] The effective date of the notice of appointment of administrator was 29 July 2013, and the effective date of the notice of appointment of liquidator was 3 September 2013.[10] Under s 269-15, the Defendant was under an obligation to cause Truscaff Scaffolding to comply with the obligation to pay the PAYG estimate amounts on and from “the initial day” for each payment. If the PAYG estimate amounts were not paid by their respective due dates, he became (prima facie) liable for a penalty.
[9] Exhibit “NP-1” to the Affidavit of Namitesh Prasad affirmed 18 February 2020.
[10] Exhibit “NP-1” to the Affidavit of Namitesh Prasad affirmed 18 February 2020.
Section 269-10(5)(a) of Sch 1 of the TAA provides that “initial day” for the purposes of estimates of PAYG withholding liability under paragraph 268-10(1)(a) is:
(i) for a company that is a * medium withholder or a * small withholder on the last day of the period identified in the notice of the estimate under section 268-15 as the period to which the underlying liability relates--the last day of that period; or
(ii) for any other company--the day by which the company is obliged to pay the amount of the underlying liability to the Commissioner; and For the purposes of Division 269, the “initial day”
Truscaff Scaffolding is a “medium withholder”. Accordingly, the “initial day” should be the last day identified in the notice as the period to which the underlying liability relates. That was 30 June 2012 (with respect to the estimate of $26,774)[11] and 31 December 2012 (with respect to the estimate of $28,326).[12]
[11] Exhibit “NP-2” to the Affidavit of Namitesh Prasad affirmed 18 February 2020.
[12] Exhibit “NP-3” to the Affidavit of Namitesh Prasad affirmed 18 February 2020.
The due date for each estimate was 27 June 2013. As at that date, PAYG estimate amounts had not been paid. Nor had an administrator or liquidator been appointed.[13]
[13] An administrator was not appointed until 29 July 2013.
Prima facie, the Defendant became liable at the end of 27 June 2013, for a penalty in the amount of $55,100.
Obligation to pay Superannuation Guarantee Charge
Part 3, Section 16 of the SGAA provides that: “Superannuation guarantee charge imposed on an employer’s superannuation guarantee shortfall for a quarter is payable by the employer”.
Section 36 of the SGAA provides that:
(1) If:
(a) an employer has not lodged a superannuation guarantee statement for a quarter; and
(b) the Commissioner is of the opinion that the employer is liable to pay superannuation guarantee charge for the quarter;
the Commissioner may make an assessment of the employer's superannuation guarantee shortfall for the quarter and of the superannuation guarantee charge payable on the shortfall.
(2) For the purposes of making an assessment under subsection (1), the superannuation guarantee shortfall is taken to be the amount that in the Commissioner's opinion might reasonably be expected to be the shortfall.
(3) Superannuation guarantee charge in relation to an assessment made under subsection (1) is payable on the day on which the assessment is made.
The DCT made three assessments of superannuation guarantee charge under s 36 of the SGAA on 30 October 2013:[14]
[14] Affidavit of Namitesh Prasad affirmed 18 February 2020.
a. for the quarter 1 April 2012 to 30 June 2012, in the amount of $41,725.31;
b. for the quarter 1 July 2012 to 30 September 2012, in the amount of $52,214.92; and
c. for the quarter 1 October 2012 to 31 December 2012, in the amount of $42,660.88.
This totals $136,601.11, but the DCT accepts that this amount was reduced by $1,228.90 in credits. The DCT exhibited a Running Balance Account extract which showed the amount outstanding as at 4 March 2020 as $135,372.21[15] and gave evidence that no relevant further payments by Truscaff Scaffolding had been received.[16]
[15] As to which, see Taxation Administration Act 1953 (Cth), Schedule 1, s 255-50.
[16] Affidavit of Namitesh Prasad affirmed 4 March 2020.
Under s 269-15 of Sch 1 of the TAA, the Defendant was under an obligation to cause Truscaff Scaffolding to comply with the obligation to pay the SGC amounts on and from “the initial day” for each amount. If the SGC amounts were not paid by their respective due dates, he became liable for a penalty.
The initial day for the purposes of superannuation guarantee charge is the last day of the relevant quarter.[17] For the purposes of Division 269, the due day for superannuation guarantee charge is treated as being the day on which the company must lodge a superannuation guarantee statement under s 33 of the SGAA (sub-s 269-10(3)). Section 33 of the SGAA provides that the superannuation guarantee statement must be lodged:
[17] Schedule 1 of the TAA, sub-s 269-10(1)(Item 5)).
a. for a quarter beginning on 1 January, on 28 May;
b. for a quarter beginning on 1 April, on 28 August;
c. for a quarter beginning on 1 July, on 28 November; and
d. for a quarter beginning on 1 October, on 28 February.
Accordingly, on and from the last day of each relevant quarter (ie 30 June 2012, 30 September 2012 and 31 December 2012), the Defendant was under an obligation to cause Truscaff Scaffolding to pay Superannuation Guarantee Charge. At the end of the due day for each quarter (28 August 2012, 28 November 2012 and 28 February 2013), the Defendant became liable for penalty to the extent that the SGC amounts had not been paid.
Prima facie, the Defendant is liable for penalty in the amount of $135,372.21.
Is a defence of illness open to the Defendant?
Sub-section 269-35(1) of Sch 1 of the TAA provides a defence to a claim for a penalty in case of illness or for some other good reason:
Illness
(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:
(a) you were a director of the company; and
(b) the directors were under the relevant obligations under subsection 269-15(1).
In order to rely upon the defence, the Defendant must establish that, because of illness or for some other good reason, it would have been unreasonable to expect him to take part, and he did not take part, in the management of the company at any time when he was a director of the company and was under the relevant obligations under sub-s 269-15(1).
As the New South Wales Court of Appeal recently explained in Snell v Deputy Commissioner of Taxation:[18]
The defence provided by s 269-35(1) requires that the director did not participate in management of the company at the relevant time because of illness or some other good reason on account of which it was unreasonable to expect the director to participate in management. Although it is sometimes not unhelpful to break down the situation described by s269-35(1) into its various component phrases, this should not detract from consideration of the provision as a whole. As a whole, the provision contemplates the circumstance that the director does not, and could not reasonably have been expected to, participate in management, because of illness or some other good reason. Essentially, this envisages a situation in which, though nominally remaining in office as a director, the relevant director does not participate in management because of illness or another good reason. In short, it involves justifiable non-participation in management, against the backdrop that it is the obligation of a director to participate in management of the company, and a director is not entitled to choose not to participate. It is unsurprising that, against that backdrop, the defence is not easily established. The defence means that a director who justifiably does not participate in management is not responsible for the Company’s default. Broadly it has two components: first, that the director does not participate in management at any relevant time, and secondly, that it would have been unreasonable to expect him to do so either because of illness or for some other good reason. Thus if, despite even serious illness, the director continues to participate in management, the defence is not available. [Emphasis added]
[18] [2020] NSWCA 29 at [49].
The evidence of illness by the Defendant is weak. It essentially consists of the Defendant’s assertions that “throughout the period of March 2012 and March 2013” he suffered a “nervous breakdown”. I did not understand him to rely upon any “other good reason” other than illness. Putting these matters to one side, it is clear from the wording of sub-s 269-35(1) and the authorities considering that provision and its predecessors, that it would not be enough for the Defendant to establish that he was ill during the relevant period. The Defendant would also need to establish that he did not in fact take part in the management of Truscaff Scaffolding at any time when Truscaff Scaffolding was under the relevant obligations.
For convenience I have set out below in table form below the initial, due day and last day of obligation with respect to each amount claimed by the Plaintiff.
Description Amount Initial Day Due day Last day of obligation[19] PAYG estimate 1 June 2012 – 30 June 2012 $26,774 30 June 2012 27 June 2013 29 July 2013 PAYG estimate 1 December 2012 – 31 December 2012 $28,326 31 December 2012 27 June 2013 29 July 2013 SGC
1 April 2012 – 30 June 2012
$41,725.31 30 June 2012 28 August 2012 29 July 2013 SGC
1 July 2012 – 30 September 2012
$52,214.92 30 September 2012 28 November 2012 29 July 2013 SGC
1 October 2012 – 31 December 2012
$42,660.88 31 December 2012 28 February 2013 29 July 2013
[19] The effective date of the appointment of an administrator.
To rely upon a defence under sub-s 269-35(1), the Defendant would need to establish that he did not in fact participate in the management of the company from the “initial day” to the “due day” with respect to each amount and perhaps to the date shown in the “last day of obligation” column. As will be seen from the above table, the “initial day” with respect to each payment claimed was a date in 2012.
There is no evidence that the Defendant did not participate in the management of the company at any time during any of the relevant periods. To the contrary, the Defendant’s own evidence is that “on or from” 1 May 2013, he “made initial contact and engaged in discussions prior to appointing independent business consultants ‘Your Business Angels” and a subsidiary accounting firm “Fresh Numbers” to take over the management of tax, superannuation, payroll and book-keeping obligations.
More detail was provided in a supplementary affidavit filed 13 May 2020,[20] in which he states:
At or around the period of May 2013 the Defendant was instructed to hand over all financials, reports etc as the contracts between the Defendant and Your Business Angels were deemed to be in operation, this freed the Director of his responsibilities and enabled him to relieve the stress which had caused his work related nervous mental breakdown, which had led him to initially appoint Your Business Angels consultants.
At the time, excluding discussions made to update the Defendant as to the progress of the advised wind-up process of the former company Truscaff Scaffolding Pty Ltd, the Defendant was acting as Director of Truscaff Commercial Scaffolding Pty Ltd, which was the company envisioned to trade forward into one amalgamated – more streamlined company once the financial mess had been sorted out by Your Business Angels and the appointed Administrator Jirsch Sutherland.
[20] At my request, the DCT provided a list of authorities on the defences of illness and reasonable steps; an Affidavit of Namitesh Prasad affirmed 1 May 2020 (correcting an error in a date in an earlier affidavit); and an Affidavit of Namitesh Prasad affirmed 6 May 2020 (correcting an error in a date in the affidavit of 1 May 2020). The Defendant was then given an opportunity to file supplementary material. I reject the DCT’s submission that I should not have regard to the material filed by the Defendant.
As each of the relevant periods commences in 2012, well before May 2013, this evidence does not provide a sufficient basis for a defence under section 269-35(1) of Schedule 1 of the TAA with a real prospect of success. Further, his evidence of “discussions” both prior to the appointment of ‘Your Business Angels’ and after their appointment may be viewed as active participation in the management of Truscaff Scaffolding even on and after May 2013.
The Defendant has no real prospect of succeeding in establishing a defence under sub-s 269-35(1).
Is an “all reasonble steps” defence open?a
Sub-section 269-35(2) of Sch 1 of the TAA provides a defence of “reasonable steps”:
All reasonable steps
(2) You are not liable to a penalty under this Division if:
(a) you took all reasonable steps to ensure that one of the following happened:
(i) the directors caused the company to comply with its obligation;
(ii) the directors caused an administrator of the company to be appointed under section 436A, 436B or 436C of the Corporations Act 2001 ;
(iii) the directors caused the company to begin to be wound up (within the meaning of that Act); or
(b) 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:
(a) when, and for how long, you were a director and took part in the management of the company; and
(b) all other relevant circumstances.
(3AA) If the obligation referred to in subparagraph (2)(a)(i) is an obligation to pay an amount of an estimate of an underlying liability under Division 268, that reference to an obligation includes a reference to the obligation to pay the underlying liability.
(3AB) For the purposes of subsection (3AA), assume that the underlying liability exists as identified in the notice of the estimate under section 268-15.
To be established, it must be shown that “all reasonable steps” were taken, i.e. that for the whole of the period the director was under obligations under sub-s 269-15(1), he or she took all reasonable steps. As said by Handley JA:[21]
Proof that nothing could have been done at various times during this period would not establish that nothing could have been done at other times. Proof that the person took all reasonable steps at various times would not establish that he or she took all reasonable.
[21] Canty v Deputy Commissioner of Taxation [2005] NSWCA 84 at [46]; applied in Shaw v Deputy Commissioner of Taxation [2016] QCA 275 at [36].
In the present case, what is relied upon as the “reasonable steps” is the steps taken, from 1 May 2013, to appoint “Your Business Angels” and “Fresh Numbers”. The Defendant claims that “the Company was in the process of being wound up on or from 1st May 2013”. Truscaff Scaffolding did not actually enter voluntary administration until 29 July 2013 and liquidation until 2 September 2013.[22]
[22] Exhibit “NP-1” to the Affidavit of Namitesh Prasad affirmed 18 February 2020.
The circumstances in which it would be reasonable for a director to wholly delegate his obligations to comply with taxation obligations to an independent company are necessarily limited.[23] I am far from satisfied that the steps the Defendant relied upon on and from 1 May 2013 would constitute “all reasonable steps” to do one of:
[23] Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; Canty v Deputy Commissioner of Taxation [2005] NSWCA 84 at [60].
a. cause Truscaff Scaffolding to comply with its obligations;
b. cause an administrator to be appointed; or
c. cause Truscaff Scaffolding to be wound up within the meaning of sub-s 269-35(2).
In any event, the steps taken on and from 1 May 2013 do not establish that the Defendant took all reasonable steps at all earlier times when he was under the obligations imposed by s 269-15(1) with respect to each amount.
The Defendant has no real prospects of succeeding in establishing a defence of “all reasonable steps” under sub-s 269-35(2).
“Initial defence”
I am unable to discern any defence with a real prospect of success in the Defendant’s “initial defence”. The decision of DCT v Buzadzic [2019] VSC 141 was overturned on appeal to the Court of Appeal[24] and, in any event, the Court’s decision in the present case does not turn on acceptance of a conclusive evidence certificate. Most of what is referred to in Part 1 is scandalous in nature. The matters referred to have no discernible evidentiary or legal basis. The “initial defence” has no real prospect of success.
[24] Deputy Commissioner of Taxation v Buzadzic [2019] VSCA 221; 348 FLR 213; see also Buzadzic v Deputy Commissioner of Taxation [2020] HCA 52.
Conclusion
When this matter first came before the Court, the “initial defence” was the entirety of Mr Truden’s defence. It is to his credit that he showed himself willing and able to articulate other more conventional defences, with appropriate assistance from the Court. Ultimately, however, I have concluded that those defences have no real prospect of success.
Section 63 of the Civil Procedure Act 2010 (Vic) (“CPA”) empowers the Court to give summary judgment if it is satisfied that a defence has no real prospects of success.
For completeness, I note that s 64 of the CPA permits the Court to refuse summary judgment where there is reason to permit this matter to proceed to trial. The Defendant in an affidavit dated 13 May 2020 contended that summary judgment should not be given because of his claims that third parties such as “Your Business Angels” may also be liable for some or all of the debt; or for breach of contract or in tort to the Defendant. These claims do not justify delaying the finalisation of this proceeding in a context where I have concluded that the Defendant’s Defence has no real prospect of success. This is particularly so in light of the evident purpose of Division 269 and the late raising of these issues. The claim made by the DCT for payment of penalty is not an “apportionable claim” within the meaning of the Wrongs Act 1958 (Vic).
Summary judgment should be given in the amount of $190,472.21 together with interest and costs.
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Certificate
I certify that these 15 pages are a true copy of the reasons for ruling of Judicial Registrar Tran, delivered on 18 May 2020.
Dated: 18 May 2020
Susan Thomas
Associate to Judicial Registrar Tran
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