SARROFF v DEPUTY COMMISSIONER OF TAXATION [1997] NSWCA 275

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

MASON P, PRIESTLEY and MEAGHER JJA 15 April 1997

[1997] NSWCA 275

Mason P This matter was argued from the appellant's point of view as if it was an appeal, the appellant contending that there was a right to appeal. The respondent disputed this, arguing that leave to appeal was necessary. However the respondent had not lodged a notice of objection to competency.

I think it is desirable that the substance of the matter be addressed without too much concern about whether or not there is a present appeal as of right.

The respondent sued the appellant in the District Court claiming $107,621. About $51,000 of this sum related to primary tax as assessed. The balance relates to additional tax pursuant to s207 of the Income Tax Assessment Act accruing on amounts of primary and provisional tax outstanding from time to time. The claim also included continuing additional tax accruing after the date of the statement of claim. Default judgment was entered on 22 March 1995 in the sum of $108,951.36.

A bankruptcy notice issued shortly thereafter. The appellant moved on notice of motion to set aside the default judgment. The respondent countered with a notice of motion filed on 17 July 1995 seeking an order for summary judgment. Affidavits directed to each notice of motion were filed. The two notices of motion came before Garling DCJ on 5 September 1995. By consent the default judgment was set aside on the basis that a sum of $3,000, which had been received by the respondent on 21 March 1989, had not been credited to the appellant's income tax account. This error had not been in dispute since the time that the respondent filed his notice of motion for summary judgment. By consent, the default judgment was set aside for the reason I have just given. However Judge Garling entered summary judgment in favour of the respondent in the sum of $105,954.57. It is that judgment which is challenged in this appeal.