[2026] NSWSC 148

Deputy Commissioner of Taxation v Dabboussi

(1) The hearing of the judgment debtor’s Notice of Motion of 9 August 2024 is adjourned; (2) The Court grants the parties liberty to approach the Listing Manager to obtain the earliest available hearing date having regard to Mr Juchau’s health; (3) The Court recommends that the matter be listed as soon as is practicable having regard to the case’s long history; (4) Costs reserved.

Catchwords

CIVIL PROCEDURE – hearings – adjournment – where service of statement of claim in issue – where service processor unavailable to give evidence due to medical exigency – where parties agree hearing of motion cannot proceed without witness

Judgment

[1]
HIS HONOUR: This matter listed for hearing before me today is an application by the judgment debtor to set aside a default judgment obtained by the Deputy Commissioner of Taxation on 5 December 2022 in respect of unpaid tax, the general interest charge and penalty tax.
[2]
This is a second application to set aside the judgment, a previous application having been dealt with by my colleague, Schmidt AJ, on 22 February 2024 by the entry of consent orders including an order that the then pending application be dismissed with no order as to costs.
[3]
A number of steps were contemplated by the recitals and agreement as recorded in the short minutes of order by consent of the parties. I am told by Mr Narayan, solicitor, who appears for the Deputy Commissioner, that so far as those agreements required conduct on the part of the Deputy Commissioner, they have been fully performed, and I did not understand Mr Archibald of counsel for the judgment debtor to take any issue with that statement.
[4]
The motion listed before me today was filed as long ago as 19 August 2024 and has not been brought on for hearing because, as I understand it, those other steps contemplated in the parties’ prior agreement were still playing out.
[5]
The main issue in the case and the basis upon which the judgment debtor moves for the default judgment to be set aside is that he disputes that he was served with the statement of claim in accordance with the rules. As I remarked in my discussion with Mr Narayan and Mr Archibald, normally a judgment entered on originating process not duly served is set aside ex debito justitiae, notwithstanding the Supreme Court’s status as a superior court of record, but other factors may inform the exercise of the power to set aside the judgment in the particular circumstances of the case. In any event, service is clearly a critical issue and much evidence has been exchanged dealing with it.
[6]
At about 9.40am this morning the process server, upon whom the judgment creditor relies as having successfully effected service, a Mr Juchau, telephoned the registry to leave a message that he was medically unfit to attend court today.
[7]
When the matter was called on for hearing Mr Narayan confirmed those facts and also advised me that Mr Juchau was currently at a medical centre awaiting medical treatment. Mr Archibald very properly takes no issue with the facts as explained by Mr Narayan and indeed consents to the adjournment in the circumstances. Clearly Mr Juchau is a critical witness, and he is required for cross-examination.
[8]
In the circumstances and given the consent of the judgment debtor, I feel that the only proper exercise of my discretion in the interests of justice is to accede to the application for an adjournment.
[9]
My orders are:
1. (1)
  The hearing of the judgment debtor’s Notice of Motion of 9 August 2024 is adjourned;
2. (2)
  The Court grants the parties liberty to approach the Listing Manager to obtain the earliest available hearing date having regard to Mr Juchau’s health;
3. (3)
  The Court recommends that the matter be listed as soon as is practicable having regard to the case’s long history;
4. (4)
  Costs reserved.