Deputy Commissioner of Taxation v Wynyard

1. [1]

   The Deputy Commissioner of Taxation (Commissioner) seeks payment in respect of tax-related liabilities.

2. [2]

   The plaintiff is the Deputy Commissioner of Taxation and is represented by A Kozary, a solicitor. The defendant is Glenda Wynyard. Ms Wynyard is self-represented. She appeared through AVL. She was intelligent and articulated.

3. [3]

   All references in this judgment to legislative provisions are to Sch 1 to the Taxation Administration Act 1953 (Cth) unless otherwise indicated.

4. [4]

   The defendant was, at all relevant times, the sole director of The Media Precinct Pty Ltd (the company). The company was at all relevant times a company incorporated or taken to be incorporated under the Corporations Act 2001 (Cth). The company incurred the tax liability. It is common ground between the parties that:

   1. (1)

      the defendant was the sole director of the company during the relevant period;

   2. (2)

      the company failed to meet its PAYG withholding and GST obligations; and

   3. (3)

      director penalty liabilities may arise under Div 269 of Sch 1 to the Taxation Administration Act. Pursuant to s 269-20, the defendant is liable to pay a sum equal to that liability as a penalty.

5. [5]

   The defendant disputed the quantum of the amount claimed and submitted that the sum certified by the plaintiff does not accurately reflect all payments and recoveries made. The defendant seeks a determination of the correct amount owing and appropriate orders enabled by way of a realistic payment arrangement.

6. [6]

   The plaintiff relied upon the affidavit of Rowshan Hasan Farhad, an Australian Public Servant employed as a Lodge and Pay Officer of the Australian Taxation Office (ATO), affirmed 24 September 2025 (Farhad Affidavit); the affidavit of Andrew Francies Dillon, an Australian Public Servant employed as a Frontline Business Improvement Business Analyst in the Bulk Print Management team of the ATO, affirmed 25 September 2025 (Dillon Affidavit); and the affidavit of Rhys Griffiths, an Australian Public Servant employed in the Frontline Compliance section of the ATO, affirmed 12 November 2025 (Griffiths Affidavit).

7. [7]

   The defendant relied upon her affidavit dated 30 October 2025 (Wynard Affidavit).

8. [8]

   By statement of claim filed on 14 May 2025, the plaintiff seeks to recover an amount of $1,804,361.38 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) and costs.

9. [9]

   By amended defence filed on 31 July 2025, the defendant pleaded the following:

   1. (1)

      The Director Penalty Notices (DPN(s)) arising from unpaid PAYG were defective:

   2. (2)

      The net amount liabilities under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) for each of the relevant tax periods to be overstated.

10. [10]

    By reply to amended defence filed on 1 September 2025, the plaintiff denies that:

    1. (1)

       the DPN records as unreported and unpaid and says that the director penalty notice records the Amounts Withheld as reported but unpaid; and

    2. (2)

       the DPN (or any of them) is defective.

11. [11]

    I shall briefly set out: first, the taxation statutory regime; secondly, the plaintiff’s evidence; thirdly, the matters raised in the amended defence and the defendant’s evidence; and finally, my conclusion.

Taxation statutory regime

1. [12]

   The plaintiff brings these proceedings under the director penalty regime in Div 269 of Sch 1 to the Taxation Administration Act.

2. [13]

   Under s 269-10(1), a director must cause a company to comply with its obligations to pay amounts withheld under Div 12, in accordance with Subdiv 16-B (PAYGW Obligation) on the due day, as defined. A director must also cause the company to pay to the Commissioner an assessed net amount for the tax period in accordance with GST Act by the relevant due date (GST Obligation).

3. [14]

   Section 269-15(1) imposes an obligation on directors to cause the company to comply with its relevant obligations. Under s 269-15(2), a director’s obligation continues until the company complies with its obligation, an administrator is appointed under ss 436A, 436B or 436C of the Corporations Act, or the company begins to be wound up within the meaning of the Corporations Act.

4. [15]

   Pursuant to ss 269-20(1) and (2), a director is liable to pay a penalty if the director’s obligations under s 269-15 are not complied with by the due day. The amount of a penalty is equal to the unpaid amount of the company’s liability under its obligation: s 269-20(5).

5. [16]

   Proceedings to recover a penalty under s 269-20 must not be commenced until the end of 21 days after the Commissioner gives a written notice under s 269-25, referred to as a DPN. A DPN must set out, among other things, what the Commissioner thinks is the unpaid amount of the company’s liability under its obligation: s 269-25(2)(a). Notice is taken to be given at the time the Commissioner posts the DPN: s 269-25(4).

6. [17]

   A DPN may be given by the Commissioner by leaving it at or posting it to an address that appears, from information held by Australian Securities and Investments Commission (ASIC) to be or to have been within the last 7 days, the director’s place of residence or business (s 29 of the Acts Interpretation Act 1901 (Cth) having no operation): ss 269-25(4) and 269-50.

7. [18]

   A DPN is validly served even if it is not, in fact, received by the addressee (Deputy Commissioner of Taxation v Rojas (No.2) [2013] NSWDC 9 at [26], citing Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 at [277]).

8. [19]

   In DCT v Lawson [2017] VSC 789 at [37], Croft J observed that “[t]he Defendant’s mere assertions as to not having received the Second DPN are not sufficient to displace the deeming effect of s 269-25(4)”. (s 269-50).

9. [20]

   As to the content of a DPN, the NSW Court of Appeal in Snell v DCT [2020] NSWCA 29 (Snell) held (Brereton JA with whom Gleeson JA and Barrett AJA agreed):

10. [21]

    Pursuant to s 269-30(1), the penalty is remitted if, before or within 21 days after the Commissioner gives the DPN, the director stops being under the obligation because the company’s liability has been discharged; or an administrator or restructuring practitioner is appointed to the company; or the company begins to be wound up.

11. [22]

    A DPN does not itself impose a liability or create a right of action. Rather, a DPN is a temporal precondition to the Commissioner’s power to commence proceedings to recover the penalty (Deputy Commissioner of Taxation v Woodhams (2000) 199 CLR 370; [2000] HCA 10 (Woodhams) at [19]; Snell at [40]). Further, the obligations of a director do not commence with a DPN. Instead, the directors are under an obligation to comply at all times from the moment the company comes under the obligation, and that obligation continues beyond the due date until one of the four matters outlined in s 269-15(2) occurs (Re Scobie & Anor; ex parte Commissioner of Taxation (1995) 59 FCR 177 at [182]-[183]).

12. [23]

    The purpose of a DPN is twofold. In Snell, the Court stated at [35]:

13. [24]

    As was explained by the High Court in Woodhams and as noted in Snell at [20] and [35], in respect of the predecessor provisions to Division 269, the predecessor provisions were not materially different to the provisions of Div 269, the purpose of these provisions is to protect the revenue, by making directors of non-complying companies liable to penalties equivalent to the amounts which the company fails to remit.

The tax debt and DPN notices

1. [25]

   The tax debt in issue comprises liabilities relating to the company: (a) PAYG withholding obligations (PAYGW Obligation); and (b) its obligation to remit goods and services tax (GST Obligation).

2. [26]

   The company or its agent lodged business activity statement (BAS) and instalment activity statements (IAS) notifying the Commissioner of the Company’s PAYG withholding amounts in relation to its PAYGW Obligation. On 22 September 2025, the plaintiff produced a certificate under ss 350-10(3) and 350-12(2) that the defendant has a tax-related liability in the amount of $1,601,009.94 in relation to the company’s PAYGW liability.

3. [27]

   On 18 September 2023, a DPN was issued to the defendant pursuant to s 269-25 for PAYG withholding amounts dated 18 September 2023 (First PAYG DPN).

4. [28]

   The First PAYG DPN provided that the defendant was liable to pay the sum of $1,186,674.19, comprising the amount the Commissioner thought, at that time, to be the unpaid amount of the company's PAYG withholding liabilities for the periods ending on 30 September 2021, 31 October 2021, 30 November 2021, 31 December 2021, 31 January 2022, 28 February 2022, 30 June 2022, 31 July 2022, 31 August 2022, 31 October 2022, 30 November 2022, 31 December 2022, 31 January 2023, 28 February 2023, 31 March 2023, 30 April 2023, 31 May 2023, 30 June 2023, 31 July 2023 and 31 August 2023.

5. [29]

   On 24 October 2024, a further DPN was issued to the defendant pursuant to s 269-25 for PAYG withholding amounts dated 24 October 2024 (Second PAYG DPN).

6. [30]

   The Second DPN provided that the defendant was liable to pay the sum of $671,310.00, comprising the amount the Commissioner thought, at that time, to be the unpaid amount of the company's PAYG withholding liabilities for the periods ending on 30 September 2023, 31 October 2023, 30 November 2023, 31 December 2023, 31 January 2024, 28 February 2024, 31 March 2024, 30 April 2024, 31 May 2024, 31 July 2024 and 31 August 2024.

7. [31]

   There was only one prima facie certificate issued in relation to the two DPNs.

8. [32]

   The company or its agent lodged BAS and IAS notifying the Commissioner of its GST return under the provisions of the GST Act, in respect of the periods ending on 30 June 2022, 31 December 2022, 31 March 2023 and 30 June 2023. Taking into account payments by the company and/or credit entitlements received by it under a taxation law, the sum owing by the Company in respect of GST liabilities is $202,000.44 (GST liability).

9. [33]

   On 22 September 2025, the plaintiff produced a certificate under s 350-10(3) that the defendant had a tax-related liability in the amount of $202,000.44 in relation to the company’s GST liability.

10. [34]

    On 18 September 2023, a DPN for unpaid GST was issued to the defendant pursuant to s 269-25 (GST DPN).

11. [35]

    The GST DPN stated that the defendant was liable to pay the sum of $447,350.06 comprising the amount the Commissioner thought, at that time, to be the unpaid amount of the company’s GST liabilities for the periods ending on 30 September 2021, 31 December 2021, 30 June 2022, 31 December 2022, 31 March 2023 and 30 June 2023.

12. [36]

    Following the GST DPN being given, the company’s GST liabilities for the periods ending on 30 September 2021, 31 December 2021, 30 June 2022, 31 December 2022, 31 March 2023 and 30 June 2023 were reduced to $202,000.44 (Farhad Affidavit at [38]).

13. [37]

    Section 269-25(4) provides that despite s 29 of the Acts Interpretation Act, a DPN is taken to be given at the time the Commissioner leaves or posts it.

14. [38]

    Section 269-50 permits the Commissioner to give a DPN by leaving it at, or posting it to, an address that appears from information held by ASIC to be, or to have been within the last 7 days, the director’s place of residence or business. S 269-50 does not prescribe the only method of service; the Commissioner can also rely on s 28A of the Acts Interpretation Act: see Note 1 to s 269-25(4).

15. [39]

    Once the Commissioner posts the DPN in accordance with s 269-50, the requirement that the DPN is given is satisfied. Proof of actual receipt is not required: Robertson v Deputy Commissioner of Taxation [2010] NSWCA 58 at [43]-[44], [65].

16. [40]

    The operation of s 269-25(4) was considered by Hall J in Deputy Commissioner of Taxation v Tannous [2016] NSWSC 1654:

17. [41]

    The plaintiff submitted that on 18 September 2023, the First PAYG DPN was given to the defendant by posting it to XXX Rowley Road, Russell Lea, NSW 2046 (defendant’s address). The defendant’s address was obtained and confirmed from an extract obtained from the records maintained by ASIC on 13 September 2023.

18. [42]

    On 24 October 2024, the Second PAYG DPN was given to the defendant by posting it to the defendant’s address. The defendant’s address was obtained and confirmed from:

    1. (1)

       the last address provided by the defendant to the Registrar; and

    2. (2)

       an extract obtained from the records maintained by ASIC on 21 October 2024.

19. [43]

    The plaintiff submitted that provided that the Court is satisfied that the DPNs were left or posted to the defendant’s address, the defendant cannot now oppose the relief sought on the basis of purported non-receipt of the DPNs.

20. [44]

    The defendant submitted that she did not receive the initial DPN at the time alleged. The defendant accepted that non-receipt would not invalidate a DPN. However, the defendant submitted that the matter is relevant to her ability to take early steps to address the company’s liabilities and to the fairness of enforcement without prior reconciliation.

21. [45]

    During the hearing, the defendant was asked whether she objected to any part of the Farhad Affidavit. The defendant responded:

22. [46]

    Later in the hearing, in response to submissions by the solicitor for the plaintiff referring to communications between the parties and numerous payment arrangements, the defendant reiterated that her position was confined to non-receipt of the First PAYG DPN. The transcript records:

Resolution

1. [47]

   As previously mentioned, there were three DPNs issued to the defendant, two in relation to PAYG withholdings and one for GST withholdings. Only the receipt of the First PAYG DPN is in dispute. The defendant conceded that although she did receive the First PAYG DPN, she does not dispute that the plaintiff had sent the First PAYG DPN.

2. [48]

   I am satisfied with the plaintiff’s evidence that the First PAYG DPN had been given to the defendant on 18 September 2023 to the defendant’s address as recorded in the ASIC search. Hence, in my view, service of the First PAYG DNP (and all DPNs) on the defendant complied with s 269-50.

3. [49]

   The defendant submitted that in Snell the Court held at [39] that the Court found that the true amount of a DPN liability is for the Court to determine. The plaintiff noted that the issue in Snell concerned a dispute as to the validity of the proceedings where the DPNs set out the amount the Commissioner thought to be owed at the time of the DPNs being given, and the amount claimed in the proceedings differed to the amount in the DPNs.

4. [50]

   The defendant relied upon the final sentence of [39] in Snell, where it was stated:

5. [51]

   The plaintiff accepted that proposition but submitted it must be subject to the evidence provisions under the Taxation Administration Act.

6. [52]

   The defendant submitted that the plaintiff had not properly accounted for substantial payments made by the company. She relied upon the Liquidator's Report to Creditors dated 15 October 2025, which recorded payments to the ATO totaling approximately $700,000. It was submitted that those payments reduced the company's taxation liabilities and must be credited against any director’s penalty recoverable under s 269-20(5).

7. [53]

   Further, the defendant submitted that an unknown amount recovered from the defendant's personal tax refunds and amounts garnished from the defendant's personal bank accounts and that the plaintiff has not accounted for amounts recovered by garnishee from the defendant's personal tax refunds and bank accounts. She submitted that any such amounts already recovered must be deducted from the amount claimed in these proceedings to avoid double recovery.

8. [54]

   It is necessary to consider the evidentiary provisions relevant to GST liability.

9. [55]

   Subdivision 350-A relates to evidence, including conclusive evidence.

10. [56]

    Item 2 of 350-10(1) provides that the production of a notice of assessment is conclusive evidence that the assessment was properly made, and the amounts and particulars stated in that assessment are correct.

11. [57]

    Pursuant to s 155-15, the Commissioner is treated as having made an assessment when a taxpayer lodges a GST return. The GST returns lodged and signed by the Commissioner are accordingly conclusive evidence of the GST liability in the GST DPN (Exhibit C – signed Business Activity Statements dated 01 April 2022 to 30 June 2022; 01 October 2022 to 31 December 2022; 01 January 2023 to 31 March 2023; 01 April 2023 to 30 June 2023).

12. [58]

    The defendant has not adduced any evidence with respect to the denial in the amended defence as to the quantum of the GST DPN.

13. [59]

    In that respect, and in the absence of any contrary evidence, the GST liability is conclusively established.

14. [60]

    The PAYG liability is governed by the prima facie evidence provisions in Sch 1 of the Act. Relevant provisions are set out as follows:

15. [61]

    Section 350-10(3) provides that:

16. [62]

    Section 350-12 provides that:

17. [63]

    The effect of a certificate issued under s 255-45 (now repealed, but in similar terms to s 350-10(3)) was considered by Leeming JA in Naumcevski v Deputy Commissioner of Taxation [2019] NSWCA 72 (Naumcevski). His Honour observed at [69]:

18. [64]

    The plaintiff submitted that, unlike in Naumcevski, in the present case, the defendant has adduced no evidence on the issue of quantum to displace the prima facie evidence in the certificates in evidence and to be tendered.

19. [65]

    The plaintiff produced a “Certification under Section 350-10(3) in Schedule 1 of the Taxation Administration Act 1953 (Cth)” dated 22 September 2025, as prima facie evidence in respect of the First and Second PAYG liabilities.

20. [66]

    The defendant submitted that the following payments had not been included by the plaintiff:

    1. (1)

       amounts garnished from the company’s bank account:

    2. (2)

       amounts garnished from the defendant’s 2024 personal income tax return; and

    3. (3)

       any other amounts were garnished from either the defendant’s personal St Geoge bank account or the company’s bank accounts.

21. [67]

    In support of her submissions, the defendant relied upon the following documents annexed to her affidavit affirmed 30 October 2025:

    1. (1)

       Email correspondence between the defendant and ATO from 17 February 2025 to 17 April 2025;

    2. (2)

       ATO Letter Rejecting Payment Plan dated 24 January 2025;

    3. (3)

       ATO Correspondence History dated 13 June 2025;

22. [68]

    ATO Payment Plan Refusal dated 16 October 2025;

    1. (1)

       Media Precinct Phased Profit and Loss Statement January 2025;

    2. (2)

       Age Account Payable dated 14 February 2025;

    3. (3)

       Media Precinct Profit and Loss Statement January 2025

    4. (4)

       SDA National FY25 Media Planner dated 17 February 2025;

    5. (5)

       Westpac Proof of Account Balance dated 11 March 2025;

    6. (6)

       Westpac Statement from Feb to March 2025 dated 11 March 2025;

    7. (7)

       Glenday Wynyard Income Tax Account for 2025 dated 22 August 2025;

    8. (8)

       ATO PAYG Director Penalty and GST Director Penalty dated 27 October 2025;

    9. (9)

       Correspondence between ATO and defendant dated 7 July 2025;

    10. (10)

        Bank Account Screenshot dated 27 June 2025;

    11. (11)

        ATO screenshot dated 7 July 2025; and

    12. (12)

        Correspondence between ATO and Defendant dated 7 April 2025.

23. [69]

    I accept that the defendant is currently employed part-time as a kitchen hand earning minimum wage and that she has no capacity to satisfy judgment for the amount claimed as a lump sum. The defendant says that she has made repeated attempts to engage with the ATO to enter into payment arrangements, all of which have been declined. At the hearing, the defendant explained that it is hard for her to obtain the documents to support her statements because they remain with the liquidator.

24. [70]

    Although I am sympathetic to the defendant’s situation, after giving careful consideration to the material made available to me, I am not satisfied that the defendant has displaced the evidence relied upon by the plaintiff in relation to quantum.

25. [71]

    In respect of the GST liability being the subject of the GST DPN, the plaintiff relies upon signed Business Activity Statements for the periods 1 April 2022 to 30 June 2022, 1 October 2022 to 31 December 2022, 1 January 2023 to 31 March 2023 and 1 April 2023 to 30 June 2023. These statements constitute conclusive evidence of the GST liability. The defendant has not adduced any evidence addressing quantum capable of displacing that conclusive evidence.

26. [72]

    In relation to the two PAYG liabilities, the plaintiff relies upon a certificate titled “Certification under s 350-10(3) in Schedule 1 of the Taxation Administration Act 1953 (Cth)” dated 22 September 2025. This certificate constitutes prima facie evidence of the amounts payable for both PAYG liabilities, being the liability in the first PAYG DNP dated 18 September 2023 and the liability in the second PAYG DNP dated 24 October 2024. Again, the defendant has adduced no evidence to rebut that prima facie evidence.

27. [73]

    The defendant’s pleadings and submissions to the effect that the quantum assessed by the plaintiff is excessive are insufficient to displace the conclusive evidence relating to the GST liability and the prima facie evidence relating to the two PAYG liabilities.

The Result

1. [74]

   The result is Judgment is entered in favour of the plaintiff in the sum of $1,804,361.38 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

Costs

1. [75]

   Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff’s costs on an ordinary basis.

Judgment

1. [76]

   The defendant is to pay the plaintiff in the sum of $1,804,361.38 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

The Court orders that

1. [77]

   The defendant is to pay the plaintiff’s costs on an ordinary basis.