Deputy Com of Taxation v Salcedo

[2005] QCA 227

Queensland Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Test for summary judgment under UCPR r 292 and r 293
4. › Whether 'no real prospect of success' test replaced General Steel 'clearly untenable' test
5. › Whether rules effected significant change in law and procedure
6. › Uniform Civil Procedure Rules 1999 (Qld), r 5, r 292, r 293
1. Taxes and Duties
2. › Income tax
3. › Collection and recovery of tax
4. › Director's liability for company's default under payment agreement
5. › Defence under s 222AQD
6. › Whether director had reasonable grounds to expect company would comply with agreement
7. › Whether director took all reasonable steps to ensure compliance
8. › Income Tax Assessment Act 1936 (Cth), ss 222ALA, 222AQA, 222AQD

Quick Take

The test for summary judgment under UCPR r 292 and r 293 is whether there is a 'real, as opposed to fanciful, prospect of success', not the former General Steel test of whether the case is 'so clearly untenable that it cannot possibly succeed'. The approach of Chesterman J in Gray v Morris, which held the UCPR did not change the summary judgment test, is not correct. For director penalty proceedings under s 222AQA of the ITAA, the defence under s 222AQD(3)(b) that there were no steps the director could have taken requires proof under s 222AQD(5) that the director had reasonable grounds to expect compliance with the agreement; the defence does not avail a director of a hopelessly insolvent company.