SARROFF v DEPUTY COMMISSIONER OF TAXATION [1996] NSWCA 466

SARROFF v DEPUTY COMMISSIONER OF TAXATION SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P and HANDLEY JA 4 November 1996

[1996] NSWCA 466

Mahoney P. There are before the Court this morning two applications. One is for leave to appeal against a judgment entered by his Honour Judge Garling on 5 September 1995, and the second is an application for a stay of proceedings pending the hearing of an appeal in this Court pursuant to that leave if it be granted.

Mr Sarroff has appeared for himself in relation to the matter, he being of course a solicitor of this Court.

The Court has dealt first with the application for a stay because that goes to the heart of the matter. If there be no stay then it may well be the other application, the application for leave to appeal, may become academic. However, I shall deal with the application for stay first.

The position appears from the affidavit of Rachel Ann Granada that income tax assessments were issued or otherwise liability arose for payment of income tax in respect of an amount of over $105,000. Proceedings were taken against Mr Sarroff in the District Court for the recovery of the amount of taxation and, as appears frompar 17 of that affidavit, on 5 September 1995 judgment was entered for an amount of $105,954.57.

It is accepted that that was an amount in excess of the true liability by an amount of $3,693.46. (At least that is what appears from those paragraphs). However that be, the fact is that the judgment entered in the District Court was excessive to the amount of $3,693.46.

It is proper to record that when the proceedings were commenced in the District Court to recover the amount of taxation said to be owing, no defence was entered by Mr Sarroff. A reference is made in his affidavit to a reason for that, or at least what is suggested to be a reason. It is said that when the assessments arrived at his office he was experiencing heart failure due to the malfunction of a cardiac pacemaker. However, nothing further appears to have been done in relation to the matter and it does not appear from the circumstances of that matter whether and to what extent it prevented a proper defence being entered at some stage before the entry of judgment.