Fenato v Chief Commissioner of State Revenue

[2010] NSWCA 80

NSW Court of Appeal

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Interrogate

Catchwords

1. Taxes and Duties
2. › Land tax
3. › Recovery of unpaid land tax as debt
4. › Essential elements of cause of action
5. › Whether service of notice of assessment and due date for payment must be pleaded
6. › Land Tax Management Act 1956 (NSW), s 39
7. › Taxation Administration Act 1996 (NSW), ss 14, 21, 44
1. Practice and Procedure
2. › Pleadings
3. › Statement of claim
4. › Summary of material facts
5. › Whether failure to plead essential elements of statutory cause of action renders pleading defective
6. › Uniform Civil Procedure Rules 2005 (NSW), r 14.7
1. Practice and Procedure
2. › Pleadings
3. › Conditions precedent
4. › Whether essential elements of cause of action are conditions precedent implied by rules of court
5. › Distinction between conditions precedent and essential elements of cause of action
6. › Uniform Civil Procedure Rules 2005 (NSW), r 14.11
1. Practice and Procedure
2. › Default judgment
3. › Setting aside
4. › Irregularly entered judgment
5. › Whether defective pleading constitutes irregularity
6. › Balancing exercise under discretion to set aside
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 36.15(1), 36.16(2)(a)

Quick Take

A statement of claim for recovery of unpaid land tax as a debt must plead service of the notice of assessment and the due date for payment, not merely the issue of the assessment and the taxpayer's failure to pay. UCPR r 14.11 does not cure the omission of essential elements of a cause of action, as there is a distinction between conditions precedent and essential elements. The Chief Commissioner's pro forma statement of claim for land tax recovery was defective.