A Deputy Commissioner has been successful, before the District Court of Queensland, in rectifying a consent order previously made by a registrar  in respect of a $600,000 debt owed by a taxpayer under s666 of the Uniform Civil Procedure Rules (Qld) (“the Rules”).

The Court held that the consent order should never have been made in those terms by the registrar, and that as it stood was not a “judgment” The Court did what should have been done in the first place and made an order for a particular amount: $612,103 in accordance with the Deputy Commissioner’s application.

(DCT v Acimovic [2016] QDC 244, District Court of Queensland, McGill SC, DCJ, 28 September 2016.)

[Austlii Report] [LTN 176, 12/9/16]

Extract from reported judgement

[1] This matter came before me as an application without an oral hearing, made by the plaintiff, to amend a consent order made by a registrar pursuant to r 666 on 5 May 2016. The order made by the registrar was defective, though made in accordance with the request made to the registrar, but the plaintiff’s proposal to rectify the deficiency does not go far enough, for reasons, which I propose to explain.

Background

[2] By the claimant’s statement of claim filed 11 August 2014 the plaintiff sought an amount of over $500,000 from the defendant as a debt due pursuant to the Taxation Administration Act 1953. On 16 January 2015 the defendant filed a notice of intention to defend and a defence, which was prepared without the benefit of legal advice. The latter set out an outline of the defence, and did not comply with the ordinary rules about pleadings. In response on 12 May 2015 the plaintiff filed an application for summary judgment under UCPR r292Evidently negotiations proceeded between the parties, and that application was adjourned from time to time.

[3] On 28 April 2016 a request for a consent order of registrar was filed, apparently signed by a duly authorised delegate of the Commissioner of Taxation, and the defendant personally, seeking an order in terms of “the attached draft order”. The attached draft order did not identify the application for summary judgment as the initiating document, but simply referred to the claim and statement of claim and the request for a consent order. If the parties were seeking that the registrar make an order by consent on the application for summary judgment, the initiating document in the order ought to have been identified as the application filed 12 May 2015. It is disconcerting that that deficiency was evidently not picked up by the registrar who gave judgment, because it is repeated in the formal order.

[5] An order in those terms was not appropriate as a response to an application under r 292, and therefore an order in those terms could not properly be made pursuant to r 666. It is not appropriate, in response to an application for summary judgment under r292, to order that “judgment be entered in favour of the plaintiff against the defendant” for any particular amount. There is no mechanism under the UCPR for entry of judgment by the registry in response to an order made on an application under that rule, or for that matter on an application under r 293 by a defendant.

[18] In the circumstances I will do what should have been done in the first place, and give judgment for a particular amount, either with or without an amount for interest and an amount for costs. The effect of the current application seems to be to seek judgment simply for a particular amount. Accordingly, I order that the consent order dated 5 May 2016 signed by the registrar under r 666 be varied so as to substitute, for the introductory words and paragraphs 1 and 2 of that order, the following:

The judgment of the court, by consent, is that:

  1. The defendant pay the plaintiff $612,103.23 in respect of the whole of the plaintiff’s claim.”