Deputy Commissioner of Taxation v Crowden

[2018] WADC 10

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   DEPUTY COMMISSIONER OF TAXATION -v- CROWDEN [2018] WADC 10

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   18 JANUARY 2018

DELIVERED          :   1 FEBRUARY 2018

FILE NO/S:   CIV 2450 of 2016

BETWEEN:   DEPUTY COMMISSIONER OF TAXATION

Plaintiff

AND

DAVID JOHN CROWDEN
Defendant

Catchwords:

Practice and procedure - Summary Judgment application - Leave to commence out of time - Turns on its own facts

Legislation:

Taxation Administration Act 1953 (Cth)

Result:

Leave granted
Judgment entered

Representation:

Counsel:

Plaintiff:     Mr K Chu

Defendant:     Mr M Priestly

Solicitors:

Plaintiff:     Minter Ellison

Defendant:     Pacer Legal

Case(s) referred to in judgment(s):

1. DEPUTY REGISTRAR HEWITT:  In this matter the plaintiff filed a pleaded writ of summons on 11 July 2016.  A memorandum of appearance was filed on 21 August 2016 and ultimately a summary judgment application was brought in the matter on 24 October 2017.  Obviously the summary judgment is substantially out of time and an explanation needs to be advanced in that regard.  In considering whether or not leave to grant an extension of time should be given it is also appropriate to make an assessment of the strength of the claim which is pursued by the plaintiff.  It is the position of the plaintiff that attempts to negotiate a settlement of this action began in September 2016 and continued for most of that year and into the following year until it became apparent that a negotiated settlement could not be achieved and the application for summary judgment was filed.  That information appears from the certificate of conferral which has been filed on behalf of the plaintiff.  Difficulties arise because the affidavit of Mr K L F Chu sworn 24 October 2017 refers to attempts to negotiate a settlement, commencing on 8 August 2017 to 20 September 2017.  That does not tally with the certificate of conferral and might be a problem were it not for the fact it is clear from a number of receipts exhibited to the affidavit of the defendant sworn 6 December 2017 that negotiations between the plaintiff and the defendant preceded the issue of the writ and continued after the writ was issued because there is reference within those receipts to various monies paid by the defendant to the plaintiff as being pursuant to what is described as ATO payment plan.  Furthermore, the defendant must be aware whether or not negotiations took place prior to 8 August 2017 but his affidavit in support does not touch on this issue.  The argument smacks of an attempt to take advantage of a typographical error rather than an issue of substance.

2. I am therefore satisfied that the plaintiff made attempts to settle this matter but those attempts were unavailing and ultimately the plaintiff filed to a summary judgment application in lieu of a negotiated settlement.

3. I now turn to examine the merits of the claim.

4. It is well established law that a summary judgment should not be granted save in the clearest of cases when it is plain that there is no arguable defence available to the defendant.  In this case the plaintiff sues for an amount of money approaching $600,000 said to be monies payable to the Superannuation Guarantee Fund and other monies payable by virtue of the default to remit the funds required.  No issue is taken by the defendant that the various sums which the plaintiff alleges should have been remitted were in fact due and they were not remitted as required.  No challenge is made to any of the amounts which comprise the sum pursued by the plaintiff save in one particular.  That particular concerns various sums of money said to have been paid by the defendant to the plaintiff in reduction of the monies due.  The defendant says that he has paid $90,000 in reduction of the monies due and that this has not been accounted for in the calculations of the sum claimed by the plaintiff.  That proposition has been dealt with by the affidavit of Joshua Beckett lodged 12 September 2017 in which Mr Beckett has produced a substantial spreadsheet identifying each and every one of the payments alleged to have been paid by the defendant, acknowledging the receipt of those funds, explaining the manner in which those funds were allocated and calculating the amount said to be owing after taking those sums into account.  Insofar there is a claim that the monies paid by the defendant in reduction of the amount due to the plaintiff the proposition has been dealt with and has shown to be without merit.

5. There remains one further matter and that concerns credits which have been allowed by the plaintiff against the monies claimed from the defendant.  The defendant argues that two different amounts being advanced as being the total of the credits have been referred to in the supporting materials.

6. This is an extremely interesting line of argument for the defendant to pursue since he argues that one or the other of amounts variously shown as credits must be incorrect and it is argued from that proposition that the whole of the plaintiff's claim should be regarded as suspect.

7. The first point I make is that of the two sums identified it is the greater sum which has been allowed as a credit in the plaintiff's summary judgment claim.  I also note that the lesser credit on an earlier date than the larger credit.   The argument would appear to be perhaps some lesser credit should have been allowed.  I am unable to see how that could advance the defendant's position.

8. The plaintiff in this action had significant advantages in the proof of its case and in particular it is the fact that the running balance account relied upon by the plaintiff in computation of the amounts due by the defendant is prima facie evidence of the monies due.  The fact that the plaintiff has allowed a greater credit from the total of the monies claimed when this application was commenced as far as I am concerned does not displace the prima facie evidence of the running balance account or the evidentiary certificate produced under the provisions of the Taxation Administration Act 1953 (Cth) which again is prima facie evidence as to the amount due at the date of that certificate.

9. On my review of the matter I am satisfied firstly that leave to bring the application to be granted and secondly that judgment in favour of the plaintiff should be entered and I shall order accordingly.