Deputy Commissioner of Taxation v Demian [2018] NSWSC 1191

Supreme Court New South Wales

Medium Neutral Citation: Deputy Commissioner of Taxation v Demian [2018] NSWSC 1191 Hearing dates: 30 July 2018 Decision date: 02 August 2018 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [98] Catchwords: PRACTICE AND PROCEDURE – pleadings – whether plaintiff required to allege mode of proof of service – pleadings not deficient

PRACTICE AND PROCEDURE – application for summary judgment of tax debt – whether issue to be tried as to date on which defendants received notices – admissions made in defendants' affidavits – statutory provision which converts allegation in pleading into prima facie evidence – no issue to be tried

PRACTICE AND PROCEDURE – application for stay – no evidence of hardship – stay refused Legislation Cited: Acts Interpretation Act 1901 (Cth), s 29 Civil Procedure Act 2005 (NSW), Pt 6, ss 56, 58 Corporations Act 2001 (Cth), ss 203B, 206B Evidence Act 1995 (Cth), ss 160, 163 Evidence Act 1995 (NSW), s 81 Income Tax Assessment Act 1936 (Cth), s 204 Income Tax Assessment Act 1997 (Cth), ss 5-5, 5-10, 5-15 Income Tax Regulations 1936, cl 40 Judiciary Act 1903 (Cth), s 39B Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 3, 6 Taxation Administration Act 1953 (Cth), ss 14ZYA, 14ZZK, 14ZZM, 14ZZR, Sch 1, ss 255-10, 255-45, 255-50, 284-75, 298-10, 298-15, 350-10 Uniform Civil Procedure Rules 2005 (NSW), rr 9.10, 14.3, 14.7, 14.23, 13.1 Cases Cited: Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation [2017] NSWCA 17; (2017) 347 ALR 134 Australian Competition and Consumer Commission v Cabcharge Australia Ltd (No 2) [2010] FCA 837 Blackett v Clutterbuck Brothers (Adelaide) Ltd [1923] SASR 301 Commercial Bank Co of Sydney Ltd v Pollard [1983] 1 NSWLR 74 Deputy Commissioner of Taxation v Cassaniti (Unreported, District Court of NSW, 10 March 2005, Quirk DCJ) Deputy Commissioner of Taxation v Swain (1993) 93 ATC 4886 Deputy Commissioner of Taxation v Tabuso [2013] NSWSC 688; (2013) 94 ATR 343 Deputy Commissioner of Taxation v Thai (1993) 26 ATR 108 Dever v Creevey, ex parte Creevey [1993] 1 Qd R 232 Fenato v Chief Commissioner of State Revenue (2010) 78 NSWLR 20; [2010] NSWCA 80 Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 Soong v Deputy Commissioner of Taxation (2011) 80 NSWLR 226; [2011] NSWCA 26 Southgate Investment Funds Limited v Deputy Commissioner of Taxation (2013) 211 FCR 274; [2013] FCAFC 10 Texts Cited: Explanatory Memorandum for Tax Laws Amendment (Improvement to Self Assessment) Bill (No. 1) 2005 Shortfall Interest Charge (Imposition) Bill 2005 Category: Principal judgment Parties: Deputy Commissioner of Taxation (Plaintiff) Charbel Demian (2018/7081) (Defendant) Hoda Demian (2018/10601) (Defendant) Representation: Counsel: R Scruby SC/K Josifoski (Plaintiff) M Richmond SC/I Young (Defendants)