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Nampula Holdings Pty Ltd v Deputy Commissioner of Taxation

 

[2002] QSC 129

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

HOLMES J

No 10038 of 2001

NAMPULA HOLDINGS PTY LTD ACN 003 775 611

Applicant

and

 

DEPUTY COMMISSIONER OF TAXATION

Respondent

BRISBANE

DATE 12/04/2002

JUDGMENT

HER HONOUR: This is an application to set aside a notice of statutory demand. The demand relates to unremitted PAYE deductions, penalties and interest.

Essentially, Mr Tucker, for the applicant creditor company, makes two points. He says that the notice of demand itself is defective because of its inadequate particularization. Subsequently, further material has been provided but the demand itself, he says, does not make clear the basis, for example, of calculation of interest and contains bald amounts.

He relies on statements in Top Felt Pty Ltd v. State Bank of New South Wales Limited (1994) 12 ACLC 11 at page 27 by Justice Lockhart sitting alone. I think Top Felt has to be distinguished in this sense: that there was a claim for interest that was continuing without a specification of its amount. That is not the case with the present notice of statutory demand. It sets out the amount of debt, the amounts payable by way of penalty, and the general interest charge payable which is described as being pursuant to item 93 of schedule 2 of the legislation and another provision of the Taxation Administration Act 1953 with the period of calculation provided. Although Mr Justice Lockhart in Top Felt says this:

“If the creditors wish to have the benefit of the presumption of insolvency, the least they can do is to tell the debtor companies in clear terms what amounts are due, whether they include interest or not, and if so the amount.”,

if that is to be taken as a test of the degree of particularisation needed, it seems to me that it was met by the notice of demand in this case which did provide the amounts. It was not left to the debtor to endeavour to work out what the interest might be as was the case in Top Felt. I do not think there is any basis for saying that the notice of demand itself was defective.

That leaves the question of whether there is some other basis on which the demand should be set aside, and here Mr Tucker says that there is an injustice to his client in this way. They have lost their records and this demand dates back as far as 1992. The Commissioner has not provided the returns, for example, on which his calculations are made, and if the matter does not go to trial, his clients will never be in a position to see the material and to challenge it.

It seems to me that there are two difficulties with that submission. If there is an injustice, it is not one that is cured by setting aside the notice of statutory demand, because the Commissioner is entitled under section 255-45 of the Taxation Administration Act to rely on a certificate as prima facie evidence in a proceeding to recover an amount of a tax related liability. Thus, there is no basis for supposing that if the matter were to proceed further that the Commissioner would have to rely on anything further than the certificate before those matters could be contested in Court.

The other difficulty is that it seems in any event that the debtors are in no position to challenge the records even if they had access to them because they do not have their own for the purpose of comparison, and it does seem to be a matter where they would have submitted returns, and ideally, would have their own returns by way of comparison, but do not.

That being the case, it does not seem to me that there is an injustice in the sense that the debtors would but for the notice of statutory demand be in a position seriously to challenge the amounts proposed by the Commissioner. If there is an injustice, it has got nothing to do with the use of this mechanism as opposed to any other.

I am not satisfied, therefore, that there exists another reason for setting aside the notice of statutory demand. I dismiss the application.

HER HONOUR: I order that the applicant pay the respondent's costs of the application including reserved costs, if any, to be assessed on the standard basis.

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Editorial Notes

  • Published Case Name:

    Nampula Holdings Pty Ltd v Deputy Commissioner of Taxation

  • Shortened Case Name:

    Nampula Holdings Pty Ltd v Deputy Commissioner of Taxation

  • MNC:

    [2002] QSC 129

  • Court:

    QSC

  • Judge(s):

    Holmes J

  • Date:

    12 Apr 2002

Litigation History

No Litigation History

Appeal Status

No Status