Deputy Commissioner of Taxation v Solway (No 2)

[2010] QDC 345

[2010] QDC 345

DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 1117 of 2010

DEPUTY COMMISSIONER OF TAXATION	Plaintiff
and
BRIAN JOHN SOLWAY	Defendant
No 1118 of 2010
DEPUTY COMMISSIONER OF TAXATION	Plaintiff

and
JOY SOLWAY Defendant
BRISBANE
..DATE 03/09/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules, r 292, r 990

Summary judgment granted on adjourned hearing of plaintiff's application - adjournment granted at behest of solicitor for each defendant so that instructions could be obtained -

nothing forthcoming - solicitor now told his instructions were
"withdrawn" - solicitor not granted leave to withdraw -
release of orders deferred until filing of original of
affidavit of debt establishing the correctness of the judgment

amount

1-1

HIS HONOUR: The court is prepared to make orders in terms of the draft judgments provided by Ms Scott in each of these matters.

They were before the court on 20 August 2010 when the only order made was to adjourn until today. That occurred at the request of Mr Chand and on the flimsy basis, although accepted by the court for the purpose, that he had instructions to seek an adjournment and expected in the future to meet with his clients and obtain instructions from them for a better defence than had to that point been forthcoming. The reasons for the court proceeding as it did can be found at [2010] QDC 336.

As matters have turned out, there was no progress. Mr Chand is still to meet with the clients. He tells the court today the mode of contact is through a broker known as 180

Corporate.

The instructions that entity gives on behalf of Mr and Mrs instance, it seems, to the Sydney office of Mr Chand's firm.

He has attended today seeking leave to withdraw as solicitor on the record for the defendants in each proceeding. I have taken the cautious approach of declining to accede to his

request.

The steps that are set out in rule 990 and following of the UCPR for a solicitor to obtain leave to withdraw have not been pursued and understandably so. It is only this morning that Mr Chand has received further instructions from 180 Corporate by telephone to the effect that his instructions are withdrawn. Nothing further is provided. 1-2 ORDER

The court accepts Mr Chand's assurances that the clients, through 180 Corporate, have been informed of today's hearing which carries the meaning that they ought to attend if they hope to escape being at risk of a judgment against them. Neither has appeared when called today at 12:25 p.m., the matter having been listed for noon.

The court had reached a point on the last occasion of being willing to enter judgment. The plaintiff has the advantage of the familiar statutory provisions which make certificates and the like specifying amounts due to the plaintiff, evidence difficult to contest; nothing is forthcoming at all to cast doubt on the correctness of the assertions which are to the effect that the Solways' company failed to remit to the plaintiff withholdings to meet tax obligations of employees.

I will defer the signing of the orders which are for judgment under rule 292 in the appropriate amounts against the respective defendants until confirmation reaches me that the original of the relevant affidavit of debt of Virginia Kevorkian in the relevant proceeding has been filed.

Ms Scott resists the qualification of the orders by endorsement of a condition that they are subject to the filing of the original of the affidavit of debt, apprehensive that that is going to involve unwelcome complications of proof of the filing of the affidavit having to be provided whenever in the future reliance might be placed on the judgment. 1-3 ORDER

The affidavits of debt the court has relied on today were sworn in Sydney this morning, which accounts for originals not being available in Brisbane. Affidavits of the same deponent deposing to the same amounts being due on the last day were read in the court. Ms Scott does not have the originals of those which have been in Brisbane for some time available in court.

It is anticipated that within the next hour or so those will be forthcoming and filed; when satisfied of that, I will make an order in terms of the initialled draft in each matter or, perhaps more correctly, I will release the initialled draft so that the plaintiff can use it.

...

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1-4 ORDER