Enforcement action: country court proceedings: the defendant’s response to the claim: defence on the grounds that a notice was not received
Although you may not often be faced with a defence that a notice was not received, whether a notice of assessment or a notice of a penalty determination, it is the most important defence. It is very difficult (although not impossible) to prove that the defendant did receive the notice.
You may need to confirm with the issuing office what address the notice was issued to and whether or not there has been any subsequent correspondence.
Unless you have clear evidence to refute the defence, you should accept it as true. You must:
- seek leave of the court to serve a fresh copy of the notice
- allow a new period for appeal
- ask the court to order the case to be adjourned to a suitable date.
However, if you have clear evidence that the defendant did receive the notice (for example an appeal or other written evidence) but has simply forgotten, refer to the fact in your reply to the defence. Invite the defendant to withdraw (that part of) the defence. If they do not, you will need to ask the court to strike it out (DMBM665900).