Gore v Deputy Commissioner of Taxation
[2015] QCA 173
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Gore v Deputy Commissioner of Taxation[2015] QCA 173
- Add to List
Gore v Deputy Commissioner of Taxation[2015] QCA 173
Gore v Deputy Commissioner of Taxation[2015] QCA 173
CITATION: | Gore v Deputy Commissioner of Taxation [2015] QCA 173 |
PARTIES: | MARINA ULRIKA LOVISA GORE(applicant)v |
FILE NO/S: | Appeal No 1868 of 2015 DC No 335 of 2013 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Civil) |
ORIGINATING COURT: | District Court at Southport – [2015] QDC 13 |
DELIVERED ON: | 18 September 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 June 2015 |
JUDGES: | Gotterson and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – OTHER MATTERS – where the DCT commenced proceedings against Ms Gore in the District Court at Southport to recover as a debt due an alleged outstanding taxation liability together with further general interest charges and costs – where the taxation liability was confined to director penalties incurred by Ms Gore in respect of unpaid actual Pay As You Go Withholding liabilities – where Ms Gore was served with Director Penalty Notices – where each notice, with a covering letter, was placed in an envelope, a stamp was affixed to each and posted in a letterbox in the Brisbane CBD – where neither envelope was returned as undelivered mail – where Counsel for Ms Gore submitted that there was evidence that the DPNs might not have been posted at all – where the primary judge ruled that there was no evidence of non-receipt by Ms Gore – where the primary judge gave judgment in favour of the DCT for the amount of $68,938.90 together with interest in the sum of $5,859.80 – where the primary judge ordered that Ms Gore pay the DCT’s costs, on the standard basis, in the amount of $4,002.60 – where Ms Gore applied for an extension of time to apply for leave to appeal – whether an extension of time to allow for leave to appeal should be granted District Court of Queensland Act 1967 (Qld), s 118(3) Taxation Administration Act 1953 (Cth), s 16-70, s 269-15(1), s 269-15(2), s 269-15(5), s 269-20, s 269-25, s 269-25(1), s 269-25(4) Uniform Civil Procedure Rules 1999 (Qld), r 292, r 295(2), r 748 Deputy Commissioner of Taxation v Gore [2015] QDC 13, considered Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271; [1998] NSWSC 64, considered Deputy Commissioner of Taxation v Falzon [2008] QCA 327, cited |
COUNSEL: | W R Chan for the applicant C M Muir for the respondent |
SOLICITORS: | Clamenz Lawyers for the applicant ATO Dispute Resolution Legal Unit for the respondent |
[1] GOTTERSON JA: This is an application for leave to appeal under section 118(3) of the District Court of Queensland Act 1967 (Qld). It is convenient to refer to the applicant in these proceedings, the defendant below, as Ms Gore; and to the respondent, the plaintiff below, as the DCT.
The District Court proceedings
[2] On 16 October 2013, the DCT commenced proceedings against Ms Gore in the District Court at Southport to recover as a debt due an alleged outstanding taxation liability in the amount of $199,347.45 together with further general interest charges and costs.[1] This amount was comprised of a taxation liability for personal income tax of $114,761.88, a shortfall interest charge thereon of $1,214.67, and director penalties of $83,370.90.
[3] Later, on 23 September 2014, the DCT filed and served an Amended Claim and Statement of Claim. By virtue of the amendments which excluded the personal income tax liability and the shortfall interest, the alleged outstanding taxation liability claimed was reduced to $68,938.90.[2]
[4] The taxation liability alleged in the amended pleading was confined to director penalties incurred by Ms Gore in respect of unpaid actual Pay As You Go Withholding (“PAYGW”) liabilities of MOGS Pty Ltd ACN 136 499 360 (the “Company”) of which Ms Gore was a director. The Company was the corporate trustee of the MOGS Unit Trust.[3]
[5] Ms Gore had filed a Notice of Intention to Defend and Defence on 11 December 2013. She did not file an Amended Defence in response to the DCT’s Amended Claim and Statement of Claim.[4]
[6] The DCT filed and served a Notice in Reply on 10 January 2014.[5]
[7] On 20 November 2014, the DCT filed an Application for Summary Judgment, an affidavit of Anne Nicholson and three affidavits of Charles Moses in support of it. The application and four affidavits were served upon Ms Gore on 24 November 2014.[6] The application was heard on 9 January 2015. At the hearing of the application, Ms Gore relied on an affidavit of some six paragraphs affirmed by her solicitor, Mr Daniel Clarke, on 16 January 2015.
[8] The affidavit material filed in support of the application and read at the hearing contained the following sworn evidence, concerning the Company’s default, Ms Gore’s obligations and Director Penalty Notices.
The Company’s Default
[9] The Company was an employer and liable to withhold amounts from payments made to employees for the purposes of Division 12 in Schedule 1 to the Taxation Administration Act 1953 (Cth) (the “TAA53”).[7]
[10] The Company notified the Commissioner of Taxation through the lodgement of Business Activity Statements that amounts had been withheld from payments made to employees. The total reported liability for amounts so withheld by the Company was $99,019.00.[8]
[11] The Company did not remit those several amounts to the Commissioner of Taxation by the days they were respectively due in breach of section 16-70 of the TAA53.[9]
Ms Gore’s Obligation
[12] Ms Gore was a director of the Company from 7 April 2009 and at all material times thereafter, including the respective initial days on which the Company withheld amounts.[10] As director, Ms Gore incurred an obligation imposed by section 269-15(1) in Schedule 1 of the TAA53 in respect of each withheld amount, to cause the Company to comply with its obligation to remit the withheld amount to the Commissioner of Taxation by the due date. The obligation in each case arose on the initial day and continued thereafter until terminated pursuant to the provisions of section 269-15(1).[11] Neither obligation was terminated pursuant to those provisions in Ms Gore’s case.
[13] By virtue of the Company’s failure to remit each withheld amount by its due date, Ms Gore continued to be subject to the obligation at that day. Further, at the end of each such due day, she became liable to pay a penalty to the Commissioner of Taxation equal to the unremitted withheld amount, pursuant to the provisions of sections 269-15(1), (2) and (5) of Schedule 1 to the TAA53.
[14] After the commencement of the proceedings, an amount of $14,432.00 was excluded as a withheld amount. Also, credits for payments and other amounts were duly allowed against the withheld amounts which the Company had failed to remit. In consequence the total of these amounts was reduced to $68,938.90 and the director penalties claimed from Ms Gore were reduced accordingly.
Director Penalty Notice – PAYGW
[15] Ms Gore was served with Director Penalty Notices (“DPNs”)[12] dated respectively 13 December 2012 and 28 February 2013.[13] Each notice, with a covering letter, was placed in an envelope by Mr Moses. He affixed a stamp to each and posted it in a letterbox in the Brisbane CBD. Each envelope was addressed to Ms Gore at 6266 Broken Hills Drive, Hope Island, QLD 4212, her address as stated in an ASIC extract for the Company. Neither envelope was returned as undelivered mail.[14]
[16] Following service of the DPNs the Company remained under an obligation to remit the due and payable PAYGW amounts[15], but failed to do so. Consequently Ms Gore remained liable to pay the penalties of $68,938.90.[16]
The hearing below
[17] The summary judgment application was heard on 19 January 2015. At the hearing, Ms Gore contended that the DCT, through its officers, had failed to serve on Ms Gore the DPNs dated 13 December 2012 and 28 February 2013.[17] The point of the submission was to engage section 269-25(1) in Schedule 1 of the TAA53 which precludes commencement of proceedings to recover a penalty until the end of 21 days after giving written notice required by the section.
[18] Counsel for Ms Gore submitted that the affidavit of Mr Clarke[18] provided evidence that the DPNs might not have been posted at all. He submitted further that evidence deposing to bad faith and motive not to post the DPNs on Mr Moses’ part is to be found in Mr Clarke’s affidavit.[19]
[19] These submissions were based on the following statements in the affidavit:
“3.I had a conference with the Defendant and my instructions were that the Defendant had not received any of the penalty notices.
…
6.On 12 October 2012 an originating process was filed and served on the ATO’s solicitors. Further on 07 [sic] December 2012 a statement of claim was served on the ATO’s solicitors. This was subsequently filed on 14 December 2012 in the Federal Court of Australia, Sydney Registry, alleging (amongst other things) that Mr Charles Moses was party to bad faith and/or improper purpose in exercising his powers and those of the ATO.”
[20] The evident purpose of Mr Clarke’s affidavit was to raise a triable issue with respect to the giving of the DPNs to Ms Gore by way of service as deposed by Mr Moses.
The judgment below
[21] Reasons for judgment in the application were delivered on 3 February 2015. Judgment in terms of those orders was given on that date.
[22] In the course of her reasons, the learned primary judge made the following observations with respect to Mr Clarke’s affidavit, the evidentiary worth of his statements in it, and how that might impact upon the evidence of Mr Moses:[20]
“[9]Paragraph 3 of Mr Clarke’s affidavit is certainly not evidence of non-receipt by the defendant of the relevant notices. Paragraph 3 does not comply with r295 (2) of the UCPR. It is not evidence based on information and belief. It is merely evidence of the defendant’s instructions to Mr Clarke. It is not evidence of the truth that the defendant did not receive the notices.
[10]In any case, s 269-25(4) of the TAA provides that notice is taken to be given at the time it is left or posted. The uncontested affidavit evidence of Mr Moses, who was not required for cross-examination at the hearing of this application, is that he, as officer for the plaintiff, posted the notices. Therefore s 269-25(4) of the TAA has been complied with. Whether the notices were actually received is irrelevant. Non-receipt is not evidence of non-delivery.
[11]As to paragraph 6 of Mr Clarke’s affidavit, this is merely evidence of the making of an allegation of bad faith in a matter litigated in other proceedings. It is certainly not evidence of bad faith in relation to the posting of the notices prior to commencing the current proceedings.
[12]There is therefore no reason to doubt the veracity of Mr Moses’ affidavits, there being no evidence to the contrary. In other words, there is no evidence at all to cause me to have any doubt the notices were posted.
[13]These were the only issues that were argued by the defendant on the application for summary judgment. Various other matters pleaded in the defence were not argued or raised on the present application. I assume therefore the defendant no longer regards them as giving rise to any arguable grounds for dismissal of the application.”
[23] Her Honour then formed the following conclusions and made orders consistently with them as follows:
“[14]On the uncontested evidence, the Company deducted PAYG instalments and didn’t remit them to the plaintiff. In those circumstances the defendant, as a director, is personally liable for the tax amount. There is a requirement to give notice before the proceedings are issued. Subject to that notice being properly issued and served the directors are liable for the tax.
[15]There was some issue as to whether the company was the relevant employer at the time. That was investigated by the plaintiff and the claim was amended. There has been no argument advanced on this application as to the proposition the company wasn’t the employer at the relevant time, in respect of the particular claim which is now proceeding as a result of the amendment. The only issue that was raised on this application was in relation to the serving of the notices to proceed.
[16]I am satisfied the plaintiff’s material establishes the facts necessary to prove its case; and the Notices of Assessment in respect of the defendant’s assessed income tax liabilities are conclusive evidence of the amounts owing.
[17]I am satisfied that the defendant has no real prospect of defending all or part of the plaintiff’s claim, and there is no need for a trial of the action. The plaintiff has satisfied the requirements of r292 of the UCPR and it is appropriate to give summary judgment.
[18]I therefore give judgment that the defendant pay the plaintiff the sum in the amount of $68,938.90 together with interest in the sum of $5,859.80. I order the defendant pay the plaintiff’s costs, on the standard basis, in the amount of $4,002.60.”
(Citations omitted)
[24] On 23 February 2015, Ms Gore filed a Notice of Appeal in this Court against those orders. Later, on 25 March 2015 an application by her for both leave to appeal and for an extension time within which to appeal was filed.[21] A short affidavit affirmed by Mr Clarke on the same date was filed in support of the application.[22]
Application for an extension of time to apply for leave to appeal
[25] Ms Gore needs leave to appeal the decision below as required by section 118(3) of the District Court of Queensland Act 1967 (Qld).
[26] Her counsel submitted:[23]
“Given that there is a demonstrable error and merits to the appeal leave to appeal ought to be granted by this Honourable Court...”
[27] She also seeks an extension of time to appeal presumably on the footing that the Notice of Appeal, though filed within the time allowed by rule 748 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), was filed without leave.
[28] With regard to that, Ms Gore’s counsel submitted:[24]
“These proceedings began with the erroneous filing of a Notice of Appeal within 28 days of judgment and are improperly instituted. The error was caused by an oversight of the legal representatives and not the Applicant/Appellant personally. Immediately upon noticing the error attempts were made to remedy it. There is no prejudice to the Respondent when due notice of intention to appeal and grounds were given within time. Considered in addition to the merits of appeal it follows that an extension of time ought to be granted in the interests of justice.”
[29] The Notice of Appeal was filed within 28 days of the date of the decision appealed from, that is to say, within the time allowed for appeal by r 748. Neither that rule nor any other provision has effect that a Notice of Appeal filed without the leave required under s 118(3) having first been obtained, is irregular. Even if it were, leave could be granted nunc pro tunc, whenever application for it was made, there being no time specified for the making of an application for leave to appeal. In these circumstances, I doubt that an extension of time within which to appeal is necessary. The live question is whether leave to appeal ought be granted. The answer to that question is very much dependent upon the viability of the proposed grounds of appeal, to which I now turn.
The proposed grounds of appeal
[30] The Notice of Appeal sets out five grounds of appeal. They are:
“1.The learned judge erred in giving summary judgment as there is a triable issue with a real prospect of success.
2.The learned judge erred by wrongly excluding the evidence of Mr Clarke (judgment paragraph [9]) in that Her Honour ruled it did not comply with r295(2) of the Uniform Civil Procedure Rules 1999.
3.The learned judge erred:
a.by holding that Mr Moses’ evidence was uncontested (judgment paragraph [10]);
b.in that she placed a burden on the defendant to cross examine Mr Moses at the hearing of the motion (judgment paragraph [10]).
4.The learned judge erred by failing to take into account evidence of motive to lie (judgment paragraph [11]).
5.The learned judge erred by reversing the burden of proof as between the applicant and respondent on the motion for summary judgment (judgment paragraphs [13]).”
[31] It is convenient to consider each ground in the order in which they are set out.
Ground 1
[32] Ms Gore’s filed defence contained only two paragraphs. The first set out admissions. The second, numbered “3”, pleaded three matters, listed (a), (b) and (c). The second of these was:[25]
“(b)the Plaintiff is prohibited from commencing proceedings for the amounts as plead by virtue of section 269-25(1) of Schedule 1 of the TAA 1953 as the Plaintiff failed to give notice pursuant to section 269-25 of Schedule 1 of the TAA 1953 for the First, Third and Fourth periods to the Defendant;”
(At the hearing of the application Ms Gore’s counsel stated that by error, a reference to the Second period had been omitted from (b).)
[33] I mention that matters (a) and (c) were comprehensively answered in the DCT’s reply. Unsurprisingly, matter (b), non-service of the DPNs, was the only ground of defence pursued at the hearing of the application. That that was so was made clear by Ms Gore’s counsel who said:[26]
“Yes. At paragraph 3(b), the plaintiff is prohibited from commencing proceedings by virtue of section 269-25(1) of schedule 1 of the TAA (1953) in that the plaintiff failed to give notice. What I say is the defence in this matter is that the plaintiff through his offices, failed to give notice at all. It’s not an issue with the postal [rule], that it was posted and we did not receive it. If that were the case, I accept that we would have no defence. Rather, it is a case – the defence alleges – the notice was not posted at all.”
[34] Relevantly, the affidavit of Mr Clarke affirmed on 16 January 2015 dealt with only two factual matters. The first was the instructions from Ms Gore regarding non-receipt of the DPNs. The second was the commencement of Federal Court proceedings by MOGS Pty Ltd against the Commissioner of Taxation, on 14 December 2012 in which the names of Mr Moses and other ATO officers appear.[27] There were not parties to those proceedings.
[35] It is Mr Clarke’s evidence concerning these two matters which Ms Gore submits gave rise to the triable issue with respect to service of the DPNs. Whether they did give rise to a triable issue is agitated in proposed grounds 2, 3 and 4. It is appropriate to determine those grounds first and then to take these determinations into account in determining this ground.
Ground 2
[36] Rule 295(2) of the UCPR permits an affidavit on a summary judgment application to contain statements of information and belief if the deponent states the sources of the information and the reasons for the belief. In his affidavit of 16 January 2015 Mr Clarke stated that in conference Ms Gore has told him she had not received any of the DPNs.[28]
[37] Her Honour rightly rejected that as evidence that Ms Gore had not received the DPNs. Mr Clarke merely deposed to the fact that Ms Gore had instructed him that the DPNs were not received. However, he did not depose to any belief on his part regarding the matter or to any reasons for such a belief. The affidavit failed to comply with rule 295(2) in this respect.
[38] In any event, admissible evidence in those limited terms would not without more have grounded a factual dispute that the DPNs were not delivered to the address to which Mr Moses swore they were posted. Some evidence about Ms Gore’s attendance at the residence at the relevant times and how often she checked for mail deliveries, at the least, would have been required for that.
[39] For these reasons the proposed ground 2 is without merit.
Grounds 3(a) & (b)
[40] In his affidavit affirmed 29 April 2014 concerning the DPN dated 13 December 2012 Mr Moses stated:[29]
“7.On 13 December 2012 at 4.30 p.m., I, on behalf of the Plaintiff, gave the Defendant the Director Penalty Notice by sending it under the covering letter by pre-paid post in the envelope, a stamp to the appropriate value having been affixed and addressed to the Defendant at the Defendant’s address, by placing it in the red Australia Post Mailbox located at the Corner of Albert Street and Elizabeth Street, Brisbane, QLD 4000.”
A copy of the stamped envelope addressed to Ms Gore was exhibited to this affidavit.[30]
[41] Evidence in the same terms was given by Mr Moses concerning the DPN dated 28 February 2013 in his affidavit affirmed 29 April 2014 with respect to that DPN, to which was exhibited a copy of the stamped envelope addressed to Ms Gore.[31]
[42] It is abundantly clear that in paragraph 10 of her reasons, the learned primary judge was referring to the evidence of posting given by Mr Moses in paragraph 7 of each affidavit. Her Honour observed that the evidence was uncontested. The observation was clearly correct. Mr Clarke did not contradict what Mr Moses had said.
[43] Further, the evident purpose of her Honour’s observation that Mr Moses was not cross-examined was to exclude the possibility that such a contest might have arisen through cross-examination. The observation recorded what had occurred. It does not state or imply that her Honour thought there was a burden on Ms Gore to cross-examine Mr Moses.
[44] Accordingly, proposed grounds 3(a) and 3(b), too, are meritless.
Ground 4
[45] This ground implies that Mr Clarke’s evidence about the commencement of the Federal Court proceedings grounded an inference that Mr Moses had a motive to lie about posting the DPNs. Such an inference, if it was available, could have gone to his credit only.
[46] I am unpersuaded that an inference of such a motive could arguably arise from the limited evidence of commencement of these proceedings. There was no evidence that Mr Moses knew that he had been named in the proceedings when he made his affidavits. In any event, the Statement of Claim in the proceeding exhibited by Mr Clarke did not impute misconduct or mala fides to Mr Moses. Moreover, there was evidence before her Honour that the proceedings had been discontinued months before the affidavits were made.
[47] However, even if it could be said that the inference arose, it would not avail Ms Gore. Mr Moses’ evidence of posting was not contradicted by admissible evidence. He was not challenged on it in cross-examination. Her Honour was therefore not placed in a position of having to make a credit finding with respect to Mr Moses.
[48] I would add that Mr Clarke’s evidence could not have separately grounded a triable issues as to an unpleaded defence namely that the DPNs were prepared and posted in bad faith. Firstly, the pleading did not attribute mala fides to Mr Moses. Secondly, and in any event, Mr Clarke did not swear to the truth of any factual assertions that had been made in the pleading, either from personal knowledge or on information and belief.
[49] To put it bluntly, the proposed ground 4 is hopeless.
Ground 5
[50] Ms Gore contends that the learned primary judge erred at paragraph [13] of her reasons by reversing the burden of proof as between applicant and respondent on the application for summary judgment. It will be recalled that her Honour there observed:[32]
“These were the only issues that were argued by the defendant on the application for summary judgment. Various other matters pleaded in the defence were not argued or raised on the present application. I assume therefore the defendant no longer regards them as giving rise to any arguable grounds for dismissal of the application.”
[51] Ms Gore did not dispute the factual summary in the DCT’s written submissions on the summary judgment application.[33] Nor did she contest that on the basis of those facts, which included service on her of the DPNs, the DCT would be entitled to judgment for the amount claimed. Her Honour therefore proceeded on the basis that the only factual issue in dispute sought to be raised in the defence, was as to non-receipt of the DPNs. Her Honour went on to consider whether that factual issue and the evidence in support of it gave rise to a triable issue.[34]
[52] The approach of the learned primary judge was both orthodox and correct. No reversal of onus of proof was involved.
[53] This proposed ground, too, has no prospects of success.
Disposition
[54] As proposed grounds 2, 3 and 4 could not succeed, proposed ground 1 which is based upon them, would also fail. In summary, none of the proposed grounds of appeal has any prospect of success. A grant of leave to appeal would be futile. It must be refused.
[55] It remains to note that at the hearing of the application to this Court, counsel for Ms Gore advanced an argument that had neither been pleaded by way of defence nor put to the learned primary judge. In those circumstances, counsel conceded that the argument could avail his client only if error below was detected and the discretion to grant summary judgment fell to be re-exercised.[35] The argument was to the effect that the DPN dated 28 February 2013 was invalid for the reason that MOGS Pty Ltd was not the trustee responsible for remitting one of the withholding amounts (the Fourth Withholding Amount of $14,432 for the period 1 January 2013 to 31 January 2013).[36] Counsel advanced the argument for invalidity in reliance upon the decision of the New South Wales Court of Appeal in Deputy Commissioner of Taxation v Gruber.[37] In that case, the court held invalid a DPN which listed separate liabilities for unpaid group tax for 13 periods, followed by a total amount “you are liable to pay as penalty”. One of the amounts was incorrectly included. Consequently, the total amount was also incorrect. The circumstances of the present case are distinguishable in a significant respect. The DPN in question did not state a total amount; hence there was no incorrect total amount. Whilst I would accept that this DPN was incorrect insofar as it included the Fourth Withholding Amount, I am unpersuaded that its validity was impaired in respect of the withholding amounts correctly listed in it. On this issue, I respectfully agree with the reasoning of Fraser JA in Deputy Commissioner of Taxation v Falzon[38] which is factually on all fours with the present case.
Orders
[56] I would propose the following orders:
1. Application for leave to appeal refused.
2. Applicant to pay the respondents’ costs of the application on the standard basis.
[57] MORRISON JA: I have read the reasons of Gotterson JA and agree with those reasons and the orders his Honour proposes.
[58] PHILIPPIDES JA: I agree with the reasons for judgment of Gotterson JA and the orders proposed.
Footnotes
[1] AB95; Reasons [6].
[2] AB57-61.
[3] AB57-61.
[4] AB62.
[5] AB63-65.
[6] AB96; Reasons [6].
[7] Affidavit of Anne Nicholson, sworn 13 November 2014, paragraph 21.
[8] Affidavit of Anne Nicholson, sworn 13 November 2014, paragraphs 22-25 & Exhibit “AN-2”.
[9] Affidavit of Anne Nicholson, sworn 13 November 2014, paragraph 34 & Exhibit “AN-3”.
[10] Pursuant to section 269-15(1) of Schedule 1 to the TAA53.
[11] Pursuant to section 269-15(2) of Schedule 1 to the TAA53.
[12] Pursuant to section 269-25 of Schedule 1 to the TAA53.
[13] Affidavit of Charles Moses, affirmed 29 April 2014, paragraph 3 & Affidavit of Charles Sean Michael Moses, affirmed 29 April 2014, paragraph 3 & Exhibits “CM-2” to each affidavit.
[14] Affidavit of Charles Moses, affirmed 29 April 2014, paragraphs 3-9 & Affidavit of Charles Sean Michael Moses, affirmed 29 April 2014, paragraphs 3-9 & Exhibits “CM-2” to each affidavit.
[15] Pursuant to section 269-15(1) of Schedule 1 to the TAA53.
[16] Pursuant to section 269-20 of Schedule 1 to the TAA53.
[17] AB97; Reasons [7].
[18] Affirmed 16 January 2015.
[19] AB97; Reasons [7].
[20] AB98-99; Deputy Commissioner of Taxation v Gore [2015] QDC 013, at [9]-[18].
[21] AB91-92.
[22] AB91-92.
[23] Amended Applicant/Appellant’s Outline of Submissions, paragraph 1.
[24] Amended Applicant/Appellant’s Outline of Submissions, paragraph 2.
[25] AB62; paragraph 3.(b).
[26] AB5; 36-42.
[27] Affidavit of Daniel Clarke, affirmed 16 January 2015, paragraphs 3 & 6.
[28] Affidavit of Daniel Clarke, affirmed 16 January 2015, paragraph 3.
[29] AB21; Affidavit of Charles Moses, affirmed 29 April 2014, paragraph [7].
[30] AB19; Affidavit of Charles Moses, affirmed 29 April 2014, Exhibit “CM-4”, page 16.
[31] AB12; Affidavit of Charles Moses, affirmed 29 April 2014, paragraph [7] & AB19; Affidavit of Charles Moses, affirmed 29 April 2014, Exhibit “CM-4”, page 16.
[32] Deputy Commissioner of Taxation v Gore [2015] QDC 13, at [13].
[33] AB68-71, adopted by her Honour at paragraph [6] of her reasons.
[34] AB5; 36-42.
[35] Tr1-21 ll18-26.
[36] On the summary judgment application, the DCT had informed the learned primary judge that MOGS Pty Ltd was not so liable as trustee in light of the decision of Gordon J in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234, and that the statement of claim had been amended to exclude that amount: Written Submissions para 28; AB74.
[37] (1998) 43 NSWLR 271.
[38] [2008] QCA 327 at [61]-[67].