Deputy Commissioner of Taxation v Kedwell [2019] NSWDC 610

District Court New South Wales

Medium Neutral Citation: Deputy Commissioner of Taxation v Kedwell [2019] NSWDC 610 Hearing dates: 14 and 23 May 2019; 19 June 2019 Date of orders: 31 October 2019 Decision date: 31 October 2019 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff for $332,531.61. (2) Defendant pay plaintiff's costs. (3) Liberty to apply in relation to these orders and any claim for interest. (4) Exhibits retained for 28 days. Catchwords: TAXATION – company of which the defendant was a director failed to remit PAYG as well as owing substantial other sums to the ATO – DPN notice issued to defendant in respect of PAYG withholding – defendant makes payments to the ATO but does not advise until the fifth payment, made at a time that proceedings on the DPN had been commenced, that these were intended to pay his own DPN liability – whether the plaintiff paid amounts for the express purpose of the DPN as claimed ESTOPPEL – whether estoppel available against the ATO – whether the ATO made representations that the PAYG withholding liabilities had been satisfied – whether there was detrimental reliance – whether the steps the defendant claimed he would have taken but for the representations could in fact have been taken Legislation Cited: Corporations Act 2001 (Cth), ss 286, 459C, 1305 District Court Act 1973 (NSW), s 134 Taxation Administration Act 1953 (Cth), Sch 1, Div 269 Cases Cited: Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 AGC (Investments) Ltd v Federal Commissioner of Taxation (1991) 21 ATR 1379 Austotel Pty Ltd & Anor v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 Bellinz Pty Ltd v Federal Commissioner of Taxation (1998) 84 FCR 154 Commonwealth v Verwayen (1990) 170 CLR 394 Commonwealth of Australia v SCI Operations Pty Ltd (1998) 192 CLR 285 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Deputy Commissioner of Taxation v Roget [No 2] [2014] WADC 25 Deputy Commissioner of Taxation v Scarf [2013] NSWDC 114 Deputy Commissioner of Taxation v Simone [2019] VSC 346 DHJPM Pty Limited v Blackthorn Resources Limited [2011] NSWCA 348 Federal Commissioner of Taxation v Australia & New Zealand Savings Bank Ltd (1994) 181 CLR 466 Federal Commissioner of Taxation v Wade (1951) 84 CLR 105 Federal Commissioner of Taxation v Winters (1997) 97 ATC 4967 Greenslade v Federal Commissioner of Taxation (1978) ATC 4625 In the matter of Precise Training Pty Limited [2018] NSWSC 1383 Jones v Dunkel (1959) 101 CLR 298 Hancock Family Memorial Foundation Ltd v Porteous (1999) 151 FLR 191 Legione v Hateley (1983) 152 CLR 406 Oamington Pty Ltd (Receiver & Manager Appointed) v Commissioner of Land Tax (1997) 98 ATC 5051 Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd (2005) Aust Contract R 90-213 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 VL Finance Pty Ltd v Legudi (2003) 54 ATR 221 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Wambo Coal Pty Ltd v Ariff [2007] NSWSC 589 Category: Principal judgment Parties: Plaintiff: Deputy Commissioner of Taxation Defendant: Nathan Joel Kedwell Representation: Counsel: Plaintiff: Mr A Narayan (solicitor) Defendant: Mr A Gerard