iscover Tax Office wins $1m summary judgment over failed liability payments
TaxThe Deputy Commissioner of Taxation has succeeded in the Supreme Court of Western Australia for a summary judgment of over $1 million against a director who saw the company under her directorship fail in SGC, GST, and PAYG obligations.
The Supreme Court of Western Australia has dismissed a director’s claim that she was not made aware of the DPNs that she received, that she had taken all reasonable steps, and that it was the fault of the National Disability Insurance Scheme (NDIS) Supported Independent Living (SIL) that the company could not meet its tax liabilities, with the court ordering costs and a summary judgment of over $1 million.
Sikhanyisiwe Moyo was director of Excell Disability Services between 1 January 2021 and 21 March 2024.
As a result of unpaid obligations in pay-as-you-go (PAYG) withholding, superannuation guarantee charge and GST, with the total amount claimed being $1,126,317.01, Moyo received a director penalty notice on 24 April 2024.
The company was found to have had incomplete PAYG withholding lodgements for 29 quarters commencing from 1 July 2021 and concluding 29 February 2024, totalling a sum of $943,245.
The company paid the deputy commissioner $46,186 through credit entitlements, reducing the outstanding amount to $897,059.
Further, the Deputy Commissioner of Taxation found that the company had a total unpaid amount in relation to the deemed and amended SGC assessments of $236.48 and $249,711.19, totalling $249,947.67 with respect to quarters commencing on 1 October 2021, 1 January 2022, 1 April 2022, 1 July 2022, 1 October 2022, 1 January 2023, and 1 April 2023.
In addition, in respect of the quarter commencing on 1 January 2022, the company had $1,354 GST payable, and for the quarter commencing on 1 April, $13,824, bringing the total amount of the GST payable in respect of the deemed GST assessments to $15,178.
The court heard that the verified total amount due in relation to the director penalties in relation to the PAYG withholding amounts, deemed and amended SGC Assessments, and deemed GST assessments is $1,162,184.67.
‘Triable issues’
Moyo submitted that the Deputy Commissioner of Taxation’s application for a summary judgment should be dismissed due to “triable issues”, including the DPNs not being served to her current address at the date of service.
Further, Moyo asserted that she took all reasonable steps to ensure the company met its tax obligations by engaging accountants and contacting the ATO, asserting that the company’s inability to meet its tax obligations was directly caused by her accountant failing to lodge the company’s business activity statements and because of the structural features of the National Disability Insurance Scheme (NDIS) Supported Independent Living (SIL).
“While I acknowledge the difficulties the defendant refers to and their significance to her, they are not matters that give rise to an arguable defence to the plaintiff’s claim,” Master Sarah Elizabeth Russell said in her decision.
“It is not enough for the defendant to have delegated responsibility for compliance with the Company’s obligations to an accountant or bookkeeper. The defendant, as director of the Company, is ultimately responsible for ensuring the Company complies with its obligations. That is what the director penalty regime is designed to address.”
Upon consideration of all evidence, Russell found it appropriate to grant summary judgment to the Deputy Commissioner of Taxation, granting it leave to bring the application for summary judgment against the defendant and made orders for costs.
The summary judgment was entered for $1,162,184.67, together with interest at the rate of 6 per cent per annum, from 5 October 2024 to 29 September 2026, totalling $135,506.91.
The case citation: DEPUTY COMMISSIONER OF TAXATION v MOYO [2026] WASC 434.
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