Deputy Commissioner of Taxation v Guljas [2025] QDC 190

DISTRICT COURT OF QUEENSLAND CITATION: Deputy Commissioner of Taxation v Guljas [2025] QDC 190 PARTIES: DEPUTY COMMISSIONER OF TAXATION (Plaintiff) v JAISON GULJAS (Defendant) FILE NO/S: BD 666/25 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court of Queensland, Brisbane DELIVERED ON: 28 November 2025 DELIVERED AT: Brisbane HEARING DATE: 2 October 2025 JUDGE: Grigg DCJ ORDER: 1. The Plaintiff is to file and serve an Amended Statement of Claim on or before 8 December 2025. 2. I will hear the parties as to costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – OTHER MATTERS – where the plaintiff, the Deputy Commissioner of Taxation, seeks to recover a director penalty from the defendant pursuant to section 269-20 of Schedule 1 of the Tax Administration Act 1953 (Cth) – where an issue is said to arise on the pleadings as to the circumstances under which (and the mechanics or logistics) of how a director penalty notice was given to the defendant – where the defendant contends that the pleading of the giving of the director penalty notice is necessary, as it will determine whether the proceedings have been lawfully commenced – where the plaintiff resists this contention – whether the plaintiff should be directed to file an amended statement of claim that pleads the material facts of the plaintiff giving a director penalty notice to the defendant. -- 1 of 10 -- 2 LEGISLATION: Acts Interpretation Act 1901 (Cth) Tax Administration Act 1953 (Cth) ss 269-15, 269-20, 269-30, 269-40, 269-45, 269-50 Uniform Civil Procedure Rules 1999 r 149, 153, 157, 367 CASES: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Birbilis Bros Pty Ltd v Bunnings Group Ltd [2023] QSC 256 Deputy Commissioner of Taxation v McArdle [2003] QCA 282; [2004] 2 Qd R 495 Hays Specialist Recruitment (Australia) Pty Ltd v Carey- Schofield; Civeo Pty Ltd v Carey-Schofield [2025] QCA 161 Mango Boulevard Pty Ltd v Spencer [2009] QSC 389 Snell v Deputy Commissioner of Taxation [2020] NSWCA 29; (2020) 350 FLR 328 White v Overland [2001] FCA 1333 COUNSEL: M Downes for the applicant (defendant) SOLICITORS: Davey & Associates Solicitors Pty Ltd for the applicant (defendant) A Roberson (solicitor) of ATO Litigation Legal Services for the respondent (plaintiff) -- 2 of 10 -- 3 Introduction [1] In this proceeding, the plaintiff, the Deputy Commissioner of Taxation (DCT), seeks to recover a director penalty from the defendant, Mr Guljas, pursuant to section 269-20 of Schedule 1 of the Tax Administration Act 1953 (Cth) (TAA). [2] When this interlocutory application came on for hearing, the court was required to determine two primary questions: (a) Should the DCT be directed to file an amended statement of claim that pleads the material facts of the DCT giving a director penalty notice (DPN) to Mr Guljas? (b) Should the DCT be directed to provide particulars of paragraphs 5, 13 and 14 of her statement of claim? [3] After discussion at the hearing, the DCT agreed to provide further particulars relating to paragraphs 5, 13 and 14 of the statement of claim, and I made an order to that effect. [4] The remaining issue for determination is whether the “giving” of the DPN is a matter that should be pleaded. [5] It is not in dispute that the giving of a DPN to a director is a prerequisite to the recovery of a director penalty. However, an issue is said to arise on the pleading as to the circumstances under which (and the mechanics or logistics) of how a/the DPN was given to the defendant. [6] It is contended that there may be a dispute as to whether the DCT has the right to recover a director penalty directly from the defendant, depending on the circumstances under which the DPN was given and the procedures followed in serving the DPN. [7] The defendant contends that the pleading of the giving of the DPN is necessary, as it will determine whether the proceedings have been lawfully commenced. [8] The DCT contends that the giving of the DPN is a condition precedent to recovery of the penalty, and pursuant to rule 153 of the Uniform Civil Procedure Rules 1999 (UCPR), is not a matter which should be specifically pleaded in the statement of claim. Statutory Requirements for DPN [9] The liability of a director of a non-compliant company to pay a penalty in circumstances where a company has failed to comply with its statutory obligations to withhold and pay certain monies, such as GST and superannuation, arises under section 269-20 of Schedule 1 of the TAA.1 Section 269-20 provides: 269-20 Penalty Penalty for director on or before due day 1 See Division 269—Penalties for directors of non-complying companies, Schedule 1, Tax Administration Act 1953 (Cth). -- 3 of 10 -- 4 (1) You are liable to pay to the Commissioner a penalty if: (a) at the end of the due day, the directors of the company are still under an obligation under section 269-15; and (b) you were under that obligation at or before that time (because you were a director). Note: Paragraph (1)(b) applies even if you stopped being a director before the end of the due day: see subsection 269-15(2). (2) The penalty is due and payable at the end of the due day. Note: The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269-25. Penalty for new director (3) You are also liable to pay to the Commissioner a penalty if: (a) after the due day, you became a director of the company and began to be under an obligation under section 269-15; and (b) 30 days later, you are still under that obligation. (4) The penalty is due and payable at the end of that 30th day. Note: The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269-25. Amount of penalty (5) The amount of a penalty under this section is equal to the unpaid amount of the company’s liability under its obligation. Note 1: See section 269-40 for the effect on your penalty of the company discharging its obligation, or of another director paying his or her penalty. Note 2: See section 269-45 for your rights of indemnity and contribution. [10] Section 269-15(2) sets out when a director’s obligation to cause a company to comply with its obligations ends. It provides: 269-15 Directors’ obligations … (2) The directors of the company (from time to time) continue to be under their obligation until: (a) the company complies with its obligation; or -- 4 of 10 -- 5 (b) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Act 2001; or (ba) a small business restructuring practitioner for the company is appointed under section 453B of that Act; or (c) the company begins to be wound up (within the meaning of that Act). [11] A penalty does not become due and payable until the end of the “due day”.2 The “note” in section 269-20(2) states “the Commissioner must not commence proceedings to recover the penalty until 21 days after giving notice under section 289-25”. [12] The obligation to give a DPN is mandatory. Section 269-25 of the TAA reiterates that recovery proceedings cannot be commenced until the requirements of section 269-25(2) have been complied with. Section 269-25(2) sets out the mandatory contents of the DPN, and section 269-25(4) prescribes when a notice is taken to have been given, which differs from the standard default position set out in section 29 of the Acts Interpretation Act 1901 (Cth). For a DPN, notice is deemed given at the time the DCT leaves or posts it. The entire section 269(25) provides: 269‑25 Notice Commissioner must give notice of penalty (1) The Commissioner must not commence proceedings to recover from you a penalty payable under this Subdivision until the end of 21 days after the Commissioner gives you a written notice under this section. Content of notice (2) The notice must: (a) set out what the Commissioner thinks is the unpaid amount of the company’s liability under its obligation; and (b) state that you are liable to pay to the Commissioner, by way of penalty, an amount equal to that unpaid amount because of an obligation you have or had under this Division; and (c) explain the main circumstances in which the penalty will be remitted. (3) To avoid doubt, a single notice may relate to 2 or more penalties but must comply with subsection (2) in relation to each of them. When notice is given 2 In Snell v Deputy Commissioner of Taxation [2020] NSWCA 29; (2020) 350 FLR 328 (Snell), the NSW Court of Appeal explained at [40] fn 21: “Each period having a “due day” for a tax-related liability gives rise to a separate liability and, if unpaid, a separate penalty, which becomes due and payable at the end of the due day for the period to which it relates: s 269-20(2)”. -- 5 of 10 -- 6 (4) Despite section 29 of the Acts Interpretation Act 1901, a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it. Note 1: Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1). Note 2: Section 269‑50 of this Act is also relevant to giving a notice under subsection (1). (emphasis added) [13] Section 269-50 sets out how a notice may be given as follows: 269-50 How notice may be given The Commissioner may give you a notice under section 269-25 by leaving it at, or posting it to, an address that appears, from information held by the *Registrar, to be, or to have been within the last 7 days, your place of residence or *business. [14] A DPN’s validity is to be determined at the time it is given.3 Contentions [15] It is not in dispute that the giving of a DPN is a precondition to proceedings for recovery of a penalty.4 [16] The DCT contends that the giving of the DPN is a condition precedent and implied in the pleadings and therefore does not need to be specifically pleaded. The DCT relies on rule 153 of the UCPR, which provides: 153 Condition precedent (1) An allegation of the performance or occurrence of a condition precedent necessary for the case of a party is implied in the party’s pleading. (2) A party who denies the performance or occurrence of a condition precedent must specifically plead the denial [17] In Birbilis Bros Pty Ltd v Bunnings Group Ltd [2023] QSC 256, Kelly J noted that “Rule 153 has been described as a rule which 'avoids the necessity for a plaintiff to expressly allege the satisfaction or performance of all conditions precedent”.5 [18] The defendant submits that the facts surrounding the giving of the DPN should be pleaded for the following reasons: 3 Deputy Commissioner of Taxation v McArdle [2003] QCA 282; [2004] 2 Qd R 495. 4 Snell at [31], and citations cited therein. 5 Birbilis Bros Pty Ltd v Bunnings Group Ltd [2023] QSC 256 at [37]; citing Mango Boulevard Pty Ltd v Spencer [2009] QSC 389, [66]. -- 6 of 10 -- 7 (a) irrespective of whether the giving of a DPN is a condition precedent, the interests of justice require the DCT to plead the giving of the DPN; (b) rule 153 does not alter the burden of proof.6 The giving of a DPN, including how and when, is uniquely within the knowledge of the DCT. What is relevant under the TAA is the giving, not the receiving, of the DPN. Without the particulars of the giving of the DPN, the defendant cannot properly plead any non-performance or non-compliance; (c) there is a potential issue regarding whether the defendant has a defence under s 269-30(1) of the TAA, by reason of remission of the director penalty, because of the date of the appointment of a small business restructuring practitioner under section 453B of the Corporations Act 2001 (Cth) on 30 November 2022; (d) rule 149(1)(c) of the UCPR requires the DCT to “state specifically any matter that if not stated specifically may take another party by surprise”; (e) the DCT is a model litigant and should not rely on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement; (f) there is no prejudice to the DCT from pleading the matter of the giving of the DPN; and (g) rule 367of the UCPR relevantly provides: (1) The court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of these rules. (2) In deciding whether to make an order or direction, the interests of justice are paramount. Consideration - Pleading Requirements and Procedural Fairness [19] The Court is not in a position to comment or make preliminary observations on the merits of any arguments regarding liability or recoverability at this stage. Depending on the particulars of the giving of the DPN, the defendant has indicated there may be a defence or bar to the proceeding. [20] The DCT may consider these defences lack merit, but that is a matter for trial (or a strike- out application if warranted). [21] The purpose of pleadings is to set out the facts relied upon to substantiate a claim or defence, ensuring that neither party is taken by surprise. Pleadings are intended to provide clarity and procedural fairness to all parties. See Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at [18] and Hays 6 Mango Boulevard Pty Ltd v Spencer [2009] QSC 389, [66]. -- 7 of 10 -- 8 Specialist Recruitment (Australia) Pty Ltd v Carey-Schofield; Civeo Pty Ltd v Carey- Schofield [2025] QCA 161, at [104]-[105]. [22] Rule 157 of the UCPR requires pleadings to provide sufficient clarity to: (a) define the issues for, and prevent surprise at, the trial; (b) enable the opposite party to plead; and (c) support a matter specifically pleaded under rule 150. [23] Rule 149 specifically provides that a pleading must state specifically any matter that if not stated specifically, may take another party by surprise and what relief is being claimed. It provides: 149 Statements in pleadings (1) Each pleading must— (a) be as brief as the nature of the case permits; and (b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and (c) state specifically any matter that if not stated specifically may take another party by surprise; and (d) subject to rule 156 , state specifically any relief the party claims; and (e) if a claim or defence under an Act is relied on—identify the specific provision under the Act. (2) In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point. [24] The Statement of Claim is silent on the giving of the DPN. [25] In my view, the giving of the DPN needs to be specifically pleaded and particularised. It is directly relevant to the cause of action pursued and the validity of the notice. The defendant is entitled to this information so that it may properly plead a response to it. Even though the giving of the DPN is undoubtedly a condition precedent, 7 the circumstances of this matter mean that the defendant cannot plead a denial without information from the DCT. The validity of service may be an issue at trial. The matters of how and when the DPN was given are matters solely within the DCT’s knowledge. [26] If, for example, the pleading of the giving of the notice identifies the DPN as invalid, the defendant could seek that the statement of claim be struck out for lack of jurisdiction. A defendant may be unable to take any available steps if the necessary matters have not been pleaded. 7 Snell at [31]. -- 8 of 10 -- 9 [27] The onus of proving the act of giving the DPN rests with the DCT. [28] The DCT is claiming the sum of $390,102.15. It is inherent in a claim for relief that the party making the claim has the right to that relief. But that is not necessarily the case in this instance. No relief could be ordered unless the Court was satisfied that the DPN service obligations had been complied with. An issue may arise with respect to whether a statutory power was exercised improperly. These matters may take the defendant by surprise. [29] The TAA provides there is a temporal element with respect to the ability to commence proceedings.8 [30] The date the DPN is deemed to be given is also relevant to whether any liability remains. Section 269-30 provides: 269-30 Effect on penalty of directors’ obligation ending before end of notice period (1) Subject to subsection (2), a penalty of yours under this Division is remitted if the directors of the company stop being under the relevant obligation under section 269 - 15: (a) before the Commissioner gives you notice of the penalty under section 269 - 25; or (b) within 21 days after the Commissioner gives you notice of the penalty under that section. … [31] In other words, the date a notice is given may not only be relevant to recovery but also to liability. [32] Regardless of the description of the how and when of the giving of the DPN being a condition precedent to the ability to commence proceedings, this information must be made known to the defendant before it can plead any defence or argument in response. Conclusion [33] Whether a particular matter needs to be pleaded may, in some cases, be a matter of fact and degree. There are meritorious arguments on both sides. Here, I find in favour of the defendant, if only because requiring the giving of the DPN will facilitate the just and expedient resolution of the issues in dispute.9 [34] I order that the DCT file an Amended Statement of Claim particularising the giving of the DPN within fourteen (14) days. Costs 8 Snell, at [40]. 9 White v Overland [2001] FCA 1333. -- 9 of 10 -- 10 [35] I will hear the parties as to costs. -- 10 of 10 --