Deputy Commissioner of Taxation v Young [2017] NSWDC 146

District Court New South Wales

Medium Neutral Citation: Deputy Commissioner of Taxation v Young [2017] NSWDC 146 Hearing dates: 25 and 26 May, 14 June 2017 Date of orders: 14 June 2017 Decision date: 14 June 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Application for leave to the first defendant to reopen his case to lead further evidence and further cross-examine the second defendant refused. (2) Judgment for the plaintiff against the first defendant for $226,529.00, plus interest. (3) Plaintiff's claim against the second defendant dismissed. (4) First defendant pay plaintiff's and second defendant's costs. (5) Liberty to restore in relation to interest and costs. (6) Exhibits retained until further order. Catchwords: TAXATION – director penalty notices (DPNs) issued to company director in respect of unpaid PAYG owed by the company to the Australian Taxation Office for an employee who carried out legal and building work – company director denies employing the employee – whether taxation records, employment contract and other documentation establish an employer/employee relationship – plaintiff joins employee as second defendant – employment relationship established – judgment for the plaintiff against the first defendant – proceedings against second defendant dismissed FRAUD – allegations of forged signatures, fake documents and "convenient fires" neither pleaded nor particularised – obligation to plead fraud with specificity – obligation to confront witness in cross-examination – inability to make findings of fraud consistent with but going beyond case advanced at trial LEAVE TO REOPEN – evidence the subject of the application available prior to the hearing and already known to all parties – application refused. Legislation Cited: Corporations Act 2001 (Cth), ss 436A, 436B and 436C Taxation Administration Act 1953 (Cth), Sch 1, ss 12-35, 16-70, 16-75, 250-10, 255-5, 269-15, 269-20, 269-25, 269-30 and 269-50 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Angel v Hawkesbury City Council [2008] NSWCA 130 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Blacktown City Council v Hocking [2008] NSWCA 144 Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 Everet v Williams (1725) In the marriage of Ferraro (1992) 16 Fam LR 1 Kartal & Dutsanee [2016] FAMCA 1158 Morvatjou v Moradkhani [2013] NSWCA 157 Nadinic v Drinkwater [2017] NSWCA 114 Reid v Brett [2005] VSC 18 Seymour v Commissioner of Taxation (2016) 241 FCR 361 Smith v New South Wales Bar Association (1992) 176 CLR 256 Stone & Rolls Ltd (in liquidation) v Moore Stephens (a firm) (2009) 2 BCLC 563 (HL) Category: Principal judgment Parties: Plaintiff: Deputy Commissioner of Taxation First Defendant: Matthew John Neil Young Second Defendant: Wlodzimierz Antoni Kozlowski Representation: Counsel: Plaintiff: Mr R Scruby / Mr N Swan First Defendant: Mr C A Evatt / Mr J Henness Second Defendant: Mr M Gracie; Mr B Douglas-Baker