Deputy Commissioner of Taxation v Bouhalis

[2009] VCC 1601

IN THE COUNTY COURT OF VICTORIA (Un) Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-08-04775

DEPUTY COMMISSIONER OF TAXATION	Plaintiff
v.
GEORGE BOUHALIS	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2009
DATE OF JUDGMENT:	10 December 2009
CASE MAY BE CITED AS:	Deputy Commissioner of Taxation v. Bouhalis
MEDIUM NEUTRAL CITATION:	[2009] VCC 1601

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Summary judgment – adjournment
application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Clarke	Australian Taxation Office
For the Defendant	Mr J. Levine	George James Lawyers
HIS HONOUR:

1           The plaintiff seeks summary judgment in respect of amounts alleged to be owing by the defendant pursuant to various taxation obligations. The summary judgment application was issued on 28 September 2009 and was returnable on 29 October 2009. By agreement, it was adjourned until today. The defendant has sought a further adjournment of the summary judgment application and has relied upon an affidavit sworn by the defendant on 10 December 2009. I refused the application for adjournment. The proceeding commenced by writ, issued 10 November 2008, to which the defendant filed an appearance on 13 January 2009 and a defence on 12 February 2009. The defence, apart from admitted certain matters, essentially indicated that the defendant did not admit the assertions made in the statement of claim.

2            The plaintiff gave the defendant the opportunity to file outstanding taxation returns relating to income tax and superannuation and liability for GST. It appears that the times allowed were not sufficient for the defendant. Some extensions were granted, but eventually the plaintiff

decided to proceed with the summary judgment application. The plaintiff amended its
statement of claim, pursuant to leave granted on 18 August 2009. Although the amended
pleading appears to make extensive changes, a study of the document and a comparison with
the original statement of claim indicates that the amount in issue remained the same and the
amendments related to the particularization of that claim. No submissions were addressed to
me as to the particulars of the amendments; it was simply asserted that, as a result of the
amendments having been made, the defendant should be entitled to a further adjournment.

3            The plaintiff’s application is supported by an affidavit of Michelle Clark, sworn 25 September 2009. The amounts deposed to in the affidavit were $28,955.54, in respect of a superannuation guarantee charge debt, and $112,734.66 in respect of the RBA deficit debt. These amounts included a general interest charge up to and including 24 September 2009. Mr Clarke, who appeared for the plaintiff today, handed up certificates signed by the plaintiff, pursuant to the relevant taxation legislation, certifying that the amounts due today, including further general interest charges, were $29,482.75, and $115,174.95. The interest charges are calculated on the taxation debt and are not calculated on the amounts previous claimed as general interest charges.

4            Mr Levine of Counsel, who appears for the defendant, made complaint about the discrepancy between the certificates and the amounts deposed to in the affidavit in support of the application for summary judgment. I stood the matter down for some hours to allow the plaintiff to produce detailed calculations showing how the amounts of the certificates were calculated. There was no obligation on the plaintiff to do so. I considered, in the circumstances, that it was appropriate to request plaintiff’s counsel to do this. It has been done. Mr Levine has had the opportunity to examine the way in which the certified amounts have been calculated. It is clear that the differences between the amounts deposed to in the affidavit and the amounts certified relate to interest charges between the relevant dates.

5            In the circumstances, I propose to enter judgment for the total of the amounts certified, together with the plaintiff’s costs of the application, which are fixed at $823.70. I will grant a stay of execution of 30 days. I have signed orders to that effect. It is appropriate, because it is a judgment of the Court, that the judgment be entered in accordance with the Rules, and that can be done by the submission of an appropriate document to the Registry. These brief reasons for judgment have been transcribed. I will make available to counsel a copy of the reasons immediately. The reasons for judgment will be edited and an edited copy will be made available in due course.

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Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 10 December 2009.

Dated: 10 December 2009

Caroline Dawes

Associate to His Honour Judge Anderson