KW & KM Quinn Investments Pty Ltd v DCT

[2003] QSC 336

SUPREME COURT OF QUEENSLAND

CITATION:

KW & KM Quinn Investments Pty Ltd v Deputy Commissioner of Taxation [2003] QSC 336

PARTIES:

KW & KM QUINN INVESTMENTS PTY LTD
(ACN 080 376 576)
(applicant)
v
DEPUTY COMMISSIONER OF TAXATON
(respondent)

FILE NO/S:

SC No 7029 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

9 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2003

JUDGE:

McMurdo J

ORDER:

Statutory demand served upon the applicant by the respondent be set aside.

CATCHWORDS:

CORPORATIONS LAW – STATUTORY DEMAND – where application to set aside statutory demand for debts arising from two income tax assessment notices – where application made in reliance on s 459J(1) – whether application made within 21 days of service of demand – whether court has power to set aside statutory demand pursuant to s 459J – whether genuine dispute as to correctness of assessment – whether applicant taking appropriate steps to set aside assessment – whether in all the circumstances court should exercise its discretion to set aside statutory demand

Evidence Act 1995 (Cth), s 163
Income Tax Assessment Act 1936 (Cth), s 99A
Uniform Civil Procedure Rules, r 103

Hoare Bros v The Commissioner of Taxation (1996) 62 FCR 302, considered

Moutere Pty Ltd v DCT (2000) 34 ACSR 533, considered
Nodnara Pty Ltd v Deputy Commissioner of Taxation (1997) 140 FLR 336, considered
Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2003] QSC 098, cited
Re: Softex Industries Pty Ltd (2001) 48 ATR 239, considered
Willemse Family Company v DCT (2002) 51 ATR 92, considered

COUNSEL:

P Bickford for the applicant

P Hack SC for the respondent

SOLICITORS:

Abbott Tout for the applicant
Australian Government Solicitor for the respondent

1. McMURDO J:  This is an application to set aside the respondent’s statutory demand dated 16 July 2003.  The amount demanded is $646,266.54, made up of amounts claimed for income tax and interest for the 1998 and 1999 years.

1. There is a threshold question concerning whether this application was made within 21 days of service of the demand.  The application was filed on 8 August, and served on that date but not before 4 p.m.  The respondent says that by the operation of the UCPR r 103 the application is taken to have been served on the next day, 9 August, relying upon Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2003] QSC 098 at [12]. If so, the applicant must show that the demand was served no earlier than 19 July. By s 163 of the Evidence Act 1995 (Cth), the demand is presumed to have been served on the fifth business day after the date of the demand, unless evidence sufficient to raise doubt about the presumption is adduced.[1]  The respondent submits that a doubt is raised by the evidence of the applicant’s accountant, Mr McSwain, whose office is the applicant’s registered office.  He recalls receiving by post the demand, although he does not recall the precise date upon which…