Court finds no error in refusal to adjourn proceedings and declines to extend appeal deadline
The NSW Court of Appeal has refused to extend time to appeal a judgment enforcing a tax settlement deed, finding that the primary judge did not err in refusing an adjournment to investigate the deed's enforceability.
In El Youssef v Deputy Commissioner of Taxation [2026] NSWCA 225, the court found that the proposed appeal lacked merit and that the interests of justice did not favour granting an extension of time to appeal.
The dispute arose from proceedings commenced by the deputy commissioner of taxation (DCT) in December 2020 concerning goods and services tax allegedly avoided through false or misleading refund claims by various companies and trusts.
In September 2023, the applicant and other parties entered into a settlement deed agreeing to pay $18 million by March 2024. The deed imposed joint and several liability and permitted the DCT to seek judgment for unpaid amounts following default.
After the parties failed to pay most of the settlement sum, the DCT sought judgment for $17,357,593.94 and costs of $782,029.89.
At the May 2024 hearing, the applicant sought a three-week adjournment to investigate whether the deed could be challenged on grounds including an alleged conflict of interest involving his former solicitor, false or misleading representations, and unconscionable conduct.
The primary court refused the adjournment because the applicant had not provided evidence establishing a factual basis for the proposed investigations. It subsequently entered judgment for the outstanding settlement amount and costs.
The applicant filed his notice of appeal approximately 18.5 months after the applicable deadline.
On appeal, he argued that the primary court had applied an excessively demanding evidentiary standard and denied him a reasonable opportunity to investigate potential challenges to the deed.
The Court of Appeal rejected those arguments, finding that the primary judge had required only some factual basis for further investigation, not proof of a complete defence.
It emphasised that the applicant could have provided relevant evidence concerning the proposed challenges but had failed to do so.
The court also considered whether the judgment constituted a consent order requiring leave to appeal under s. 101(2)(c) of the Supreme Court Act 1970 (NSW). It found it unnecessary to resolve that question.
The court refused the extension of time, dismissed the leave application and notice of appeal, and ordered the applicant to pay costs.
