Deputy Commissioner of Taxation v Hunter
[2014] VCC 1997
•19 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised from a tape of Reasons delivered orally |
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-13-02976
DEPUTY COMMISSIONER OF TAXATION
| Plaintiff | |
| v | |
| DAVID HUNTER | Defendant |
Case No. CI-13-02977
DEPUTY COMMISSIONER OF TAXATION
| Plaintiff | |
| v | |
| KEN HUNTER | Defendant |
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JUDGE: | HER HONOUR JUDGE KENNEDY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2014 | |
DATE OF JUDGMENT: | 19 November 2014 | |
CASE MAY BE CITED AS: | Deputy Commissioner of Taxation v Hunter | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1997 | |
REASONS FOR RULING
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Application to set aside default judgments – Defence on the merits of accord and satisfaction– judgment set aside - Lubura v Nezirevic [2013] VSCA 215 applied
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Patrick Long (solicitor) | Australian Taxation Office |
| For the Defendants | Self-represented | Self-represented |
HER HONOUR:
1 This is the return of two applications to set aside default judgments.
2 The proceedings were issued against both a son (Kenneth Hunter) and father (David Hunter) on 13 June 2013. They primarily relate to outstanding superannuation guarantee charges in respect of the defendants, as partners in a plastering business.
3 Default judgments were entered in default of appearance on 27 September 2013.
4 The applications to set aside these judgments were not made until 21 August 2014, and were subsequently adjourned pending the filing of further affidavits.
Principles
5 In Lubura v Nezirevic [2013] VSCA 215 at paragraph 3, the Chief Justice described the test for setting aside a default judgment as follows:
“Whether there is a defence on the merits;
The reasons for the default;
Whether the application to set aside the judgment was made promptly after the judgment came to the knowledge of the first defendant; and
Whether, if the judgment is set aside, a suitable award of costs and the giving of security would be adequate to cover the prejudice to the plaintiff in having the judgment set aside.”
6 Her Honour also highlighted certain comments from Lord Wright in Evans v Bartlam[1] to the effect:
[1] [1937] AC 473.
“The primary consideration is whether (the defendant) has merits to which the court should pay heed; if merits are shown the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication.”
Application of principles
7 There has been a wealth of material filed in this matter by all parties. The defendants’ material in particular raises a number of extraneous matters (which is explicable, to some extent, by the fact that they are not represented persons).
8 There are two defences that appear to be raised on the merits.
9 The first is that there was an amount incorrectly debited in relation to the account. Thus, it is said that the correct amount was $4,948, but an incorrect amount of $15,316 was debited.
10 There is very little in the way of evidence to justify this claim such as would effectively challenge the certificates provided by the Deputy Commissioner (which support the amounts claimed). It would also would not constitute a defence of the rest of the claim.
11 Secondly, however, David Hunter swears in his affidavits that at a meeting on 5 August 2011, the defendants reached an agreement with the Commissioner to make instalment payments of $3,000 a month.[2]
[2] See e.g. Affidavit of David Hunter of 13 November paragraph 12; Affidavit of David Hunter of 3 October paragraph 4
12 He then further suggests that in a phone call shortly thereafter, on 27 October 2011, a representative of the Commissioner sought to renege on the arrangement and demanded that payments of $5000 be made instead. Kenneth Hunter further states that he heard this conversation on speaker.[3]
[3] Further Affidavit of Kenneth Hunter of 13 November paragraph 5
13 The defendants’ case appears to be that, as a result of this breach of the agreement, they thereby did not make the payments, did not obtain a loan, and suffered loss by reason of the subsequent garnishing of their accounts.
14 There may be some doubt as to whether such a defence will be successful at trial. It appears, for example, that the claim is contradicted by objective records of the tax office, which suggest that the $3,000 arrangement was approved on 27 October 2011 and the defendants advised accordingly.
15 However, such a conflict is not a matter for a duty judge to assess on an interlocutory application. It is a matter instead for trial.
16 As indicated by the principles I have cited, a court will not prima facie desire to let a judgment pass on which there has been no proper adjudication, where a defence is raised.
17 The defence of accord and satisfaction appears to be raised on the material.
18 In terms of the other considerations, Mr David Hunter states that he was unwell and unable to seek advice and did not fully comprehend what was required.[4]
[4]Paragraph 25 of his affidavit of 13 November 2014
19 Mr Kenneth Hunter also suggests that he did not fully understand the Writ, nor what action was required, as his father was sick at the time and he was working long hours every day to try and get jobs done on time.[5]
[5]Paragraph 8 of his affidavit of 13 November 2014
20 Although not entirely satisfactory, the (unrepresented) defendants appear to have been affected by illness, and not fully cognitive of court procedures.
21 The plaintiff has highlighted that there is an outstanding creditor’s petition. I have taken this into account but propose listing the matter for an urgent trial date in February, so as to ameliorate such prejudice.
22 In all the circumstances, I am therefore satisfied that the default judgments should be set aside.
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