Deputy Commissioner of Taxation v Stalteri
[2015] WADC 125
•22 OCTOBER 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DEPUTY COMMISSIONER OF TAXATION -v- STALTERI [2015] WADC 125
CORAM: DEPUTY REGISTRAR KUBACZ
HEARD: 21 OCTOBER 2015
DELIVERED : 22 OCTOBER 2015
FILE NO/S: CIV 3242 of 2014
BETWEEN: DEPUTY COMMISSIONER OF TAXATION
Plaintiff
AND
ROBERT ANTHONY SAMUEL STALTERI
Defendant
Catchwords:
Practice - Application for summary judgment - Claim under Taxation Administration Act 1953 - No new Principles
Legislation:
Income Tax Assessment Act 1936
Income Tax Assessment Act 1997
Income Tax Regulations 1936
Taxation Administration Act 1953
Result:
Judgment given
Representation:
Counsel:
Plaintiff: Ms A Jennings
Defendant: No appearance
Solicitors:
Plaintiff: Jackson McDonald
Defendant: Not applicable
Case(s) referred to in judgment(s):
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jacka Nominees Pty Ltd v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 205691, 12 October 1992)
DEPUTY REGISTRAR KUBACZ: On 21 October 2005, I heard the plaintiff's application for summary judgment and gave judgment on that day. I indicated that I would publish reasons, and these are those reasons.
The plaintiff brought proceedings on 26 September 2014 the Income Tax Assessment Act 1936 (ITAA 1936) and the Income Tax Assessment Act 1997 (ITAA 1997), in relation to unpaid income tax, a Running Balance Account deficit debt and for failure to lodge an income tax return.
The plaintiff pleads that the defendant was assessed to pay income tax for the years ended 30 June 2010, 30 June 2011 and 30 June 2012 and that notices of assessment in respect of each period was served on the defendant in accordance with the ITAA 1936 and the Income Tax Regulations 1936 (the Regulations). Income tax then became due and payable pursuant to s 204 of the ITAA 1936 and s 5-5 if the ITAA 1997 and the defendant failed to pay any of the amount due and owing on or before the due date. Given this the defendant became liable to pay the general interest charge pursuant to s 5-15 of the ITAA 1997 and Pt IIA of the Taxation Administration Act 1953 (TAA).
The defendant also became liable to pay a shortfall interest charge on an additional amount of income tax pursuant to s 280-100 of Sch 1 of the TAA and the defendant became liable to pay the shortfall interest charge when the plaintiff amended his assessment for the income years ended 30 June 2010 and 30 June 2011 (shortfall interest charge). A notice of the shortfall interest charge was served on the defendant by giving the defendant the 2010 Notice of Amended Assessment and the 2011 Notice of Amended Assessment.
Pursuant to s 298-30 of the TAA the defendant also became liable for the administrative penalties on the shortfall amounts, notice of which was provided to the defendant on 13 August 2012.
The plaintiff goes on to plead that he established a Running Balance Account (RBA) in respect of primary tax debts due by the defendant under the BAS provisions and primary tax debts due by the defendant as administrative penalties. From time to time, the balance of the RBA fell in arrears and the defendant then became liable to pay the general interest charge in relation to the deficit debt.
Finally, the plaintiff pleads that the defendant failed to lodge an income tax return for the year ended 30 June 2013 on or before its due date and therefore the defendant became liable to pay a penalty pursuant to s 286‑75 in Sch 1 of the TAA. The defendant was notified of the penalty and failed to pay the penalty on or before the due date thereby becoming liable to pay the general interest charge.
The plaintiff has brought an application pursuant to O 14 Rules of the Supreme Court 1971 (RSC). The application is supported by affidavits of Todd Renfrey Hill sworn 16 September 2015 and 16 October 2015 and affidavits of Jill Clough dated 15 September 2015 and 15 October 2015. The affidavits show a prima facie case for the plaintiff.
The defendant did not attend the hearing nor did provide any evidence in opposition to the application or any submissions.
Delay
The defendant entered an appearance to the writ of summons on 2 December 2014. The application for summary judgment was filed on 16 September 2015.
In the affidavit of Todd Renfrey Hill sworn 16 September 2015, it is deposed that the plaintiff had attempted to contact the defendant on several occasions to see if the matter could be resolved. Unfortunately, the defendant was difficult to contact and therefore negotiations could not take place. It is deposed that the delay in applying for summary judgment has been caused by the plaintiff's attempt to afford the defendant the opportunity to resolve the matter out of court and that no prejudice has been caused to the defendant by reason of the delay.
The RSC require that a summary judgment application is to be brought at an early stage. The reasoning behind this is to ensure that costs are minimised. According to the affidavit evidence, the plaintiff delayed in bringing the application in order to attempt to enter into negotiations with the defendant in order to both be fair to the defendant and to minimise costs. In these circumstances, it would be inappropriate to penalise the plaintiff for the delay in bringing the application, particularly given there does not appear to be any prejudice on the part of the defendant and the defendant has not provided any evidence to the contrary.
It is within the court's discretion after considering all of the circumstances of the matter whether and extension of time should be granted (Jacka Nominees Pty Ltd v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 205691, 12 October 1992)). In the circumstances, I am of the opinion that leave be granted for the plaintiff to bring the application out of time.
Legal Principles
The principles upon which an application for summary judgment pursuant to O 14 RSC are well settled. The power to order summary judgment should be exercised with great care, and should not be exercised unless it is clear that there is no real question to be tried. In all cases where there remains uncertainty as to a parties right to judgment, then summary judgment must be refused: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184.
The Application
Pursuant to s 255-50 of Sch 1 of the TAA, the plaintiff is entitled, in his official name, to sue to recover debts due to the Commonwealth of Australia and payable to the plaintiff.
Section 255-1 and s 255-5 of Sch 1 of the TAA state that income tax, administrative penalties and running balance account deficit debt constitute tax related liabilities due to the Commonwealth and payable to the plaintiff and may be sued for in a court of competent jurisdiction.
Section 255-50(1) of Sch 1 of the TAA provides that in proceedings to recover an amount of a tax related liability, a statement or averment about a matter in the plaintiff's claim is prima facie evidence of the matter.
The evidence shows, in the affidavit of Jill Clough dated 15 September 2015, that the plaintiff issued to the defendant notices of income tax assessment for the relevant years, amended assessments for the relevant years, notice of the relevant shortfall interest penalties, an RBA statement and an evidentiary certificate. These documents are prima facie evidence of the matters the subject of the application.
The defendant did not appear at the hearing of the matter. He has not put forward any evidence to challenge the evidentiary basis of the documents, nor has he put forward any evidence to show that there is a real question to be tried.
Conclusion
For these reasons, the plaintiff is entitled to judgment in the sum of $214,653 plus general interest charges accruing from 20 October 2015 pursuant to s 5-15 of the ITAA 1997 and s 8AAZF and Pt IIA of the TAA until payment in full.
The plaintiff is further entitled to the costs of the action, including this application, to be taxed if not agreed.
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