NGHIEM & ASTEY

The case of *Nghiem & Astey* concerned an application by the plaintiffs, Nghiem and Astey, for an order that the defendant, the Commissioner of Taxation, provide further and better particulars of certain allegations made in its defence. The dispute arose in the context of proceedings where the plaintiffs sought declarations that certain tax assessments were void and of no effect, and that the Commissioner was estopped from recovering amounts purportedly due under those assessments. The application for further and better particulars was heard by Stevenson J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the particulars provided by the Commissioner in its defence were sufficient to adequately inform the plaintiffs of the case they were required to meet. Specifically, the plaintiffs sought to understand the factual basis for the Commissioner's assertions that the plaintiffs had engaged in tax avoidance schemes and had failed to provide full and frank disclosure to the Australian Taxation Office. The Court was required to consider the principles governing the provision of particulars in civil litigation, particularly in complex tax cases.

Stevenson J applied the well-established principles that particulars should be sufficient to enable the opposing party to know the case they have to meet and to prepare their evidence accordingly. His Honour noted that while the Commissioner had pleaded certain broad allegations, these lacked the necessary specificity to satisfy this requirement. The Court found that the Commissioner’s defence contained assertions that were not adequately particularised, particularly concerning the nature of the alleged tax avoidance and the specific instances of non-disclosure. The Court reiterated that in such circumstances, the party making the allegations bears the onus of providing sufficient detail to support them.

The Court ordered that the Commissioner provide further and better particulars of its defence within a specified timeframe.