Federal Court of Australia

Deputy Commissioner of Taxation v GTGF Australia Ltd (receivers and managers appointed) [2022] FCA 1148

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth), judgment be entered for the applicant as follows:

(a)    against the First Respondent in the sum of $19,744,454.96;

(b)    against the Second Respondent in the sum of $85,360.42;

(c)    against the Third Respondent in the sum of $81,629.99;

(d)    against the Fourth Respondent in the sum of $459,778.06;

(e)    against the Fifth Respondent in the sum of $24,608.60;

(f)    against the Sixth Respondent in the sum of $334,907.69;

(g)    against the Seventh Respondent in the sum of $92,018.59;

(h)    against the Eighth Respondent in the sum of $479,837.43;

(i)    against the Ninth Respondent in the sum of $57,262.87;

(j)    against the Tenth Respondent in the sum of $122,154.29;

(k)    against the Eleventh Respondent in the sum of $406,194.64; and

(l)    against the Twelfth Respondent in the sum of $64,331.92.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

1    The proceeding was commenced by the Deputy Commissioner of Taxation (DCT) against seventeen respondents. In its amended originating application, the DCT seeks judgment against the first to twelfth corporate respondents for various liabilities arising out of GST overpayments, penalties and general interest charges (GIC). As against the thirteenth to sixteenth individual respondents, the DCT seeks equitable compensation. The seventeenth respondent is the Registrar General of NSW who was joined to the proceeding for the purpose of enjoining it from registering any dealings in respect of certain real property. It has filed a submitting notice.

2    By interlocutory application, the DCT applied for summary judgment against the corporate respondents. I pronounced orders at the completion of the hearing. These are my reasons.

3    In respect of each corporate respondent, a certificate signed by the DCT under s 8AAZJ of the Taxation Administration Act 1953 (Cth) certifying that the relevant taxpayer has an RBA deficit debt and the amount owing as of 21 September 2022 under the respective RBA deficit debt is in evidence. In that regard, the certificates provide that the RBA deficit debt of –

(1)    the first respondent is $19,744,454.96;

(2)    the second respondent is $85,360.42;

(3)    the third respondent is $81,629.99;

(4)    the fourth respondent is $459,778.06;

(5)    the fifth respondent is $24,608.60;

(6)    the sixth respondent is $334,907.69;

(7)    the seventh respondent is $92,018.59;

(8)    the eighth respondent is $479,837.43;

(9)    the ninth respondent is $57,262.87;

(10)    the tenth respondent is $122,154.29;

(11)    the eleventh respondent is $406,194.64; and

(12)    the twelfth respondent is $64,331.92.

4    The DCT tendered notices of assessment given to each corporate respondent in respect of assessed taxation debts and administrative penalties. By item 2 of s 350-10(1) of Sch 1 to the Act, the production of a notice of assessment is conclusive evidence that the assessment was properly made and, other than in proceedings under Pt IVC, that the amounts and particulars of the assessment are correct.

5    In respect of GIC on the outstanding tax debts, the DCT tendered running balance account (RBA) statements for each corporate respondent and the certificates already mentioned. Section 8AAZJ(1)(d) of the Act provides that in proceedings for the recovery of an RBA deficit debt, a certificate signed by the DCT, as in the present case, stating that a specified amount was the RBA deficit debt on the date of the certificate, is prima facie evidence of the amount of the RBA deficit debt.

6    None of the corporate respondents opposed summary judgment being granted against them. However, Mr Anderson, the thirteenth respondent and a director of each of the corporate respondents, filed an affidavit and sought to speak on behalf of the corporate respondents at the hearing. I granted Mr Anderson leave to do so. In his submissions, Mr Anderson relied on his affidavit and made generalised allegations about the DCT having lied, been unfair and generally to have been oppressive of the respondents.

7    Given the conclusiveness of the assessments in the present proceeding and that they can only be challenged in proceedings under Pt IVC of the Act (see Deputy Commissioner of Taxation v Ho (1996) 32 ATR 269 at 271), everything directed by Mr Anderson at the underlying assessments and primary tax liability was not to the point. He did not contest that proper notice of the assessments had been given, and raised no issue as to the sums reflected in the RBA statements as certified by the DCT or the dates for payment having passed. For example, there was no submission that the GIC had been calculated incorrectly or that any payments had been made but not credited to the RBA statements.

8    In the circumstances, I was satisfied that the corporate respondents have no reasonable prospect of successfully defending the proceeding and that summary judgment should be entered against each of them as sought by the DCT.

9    I also extended the freezing orders against the respondents and gave leave to the DCT to file an amended originating process in respect of its remaining claims against the individual respondents. The amendments were not opposed.

Associate:

Dated:    26 September 2022

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