Matar v Jones [2011] NSWCA 304
15
… The overwhelming probabilities are in my view that, as he indicated when he gave evidence for the second time, the appellant did not disclose the lease payments for income tax purposes.
16
This is to the appellant's discredit but does not preclude him from recovering damages upon what he truly earned, as distinct from what he disclosed. The following observations made by von Doussa J in Giorginis v Kastrati [1988] 48 SASR 371; [1989] Aust Torts Reports 68,460 and approved by this Court in AMP General Insurance Ltd v Kull [2005] NSWCA 442; (2006) 14 ANZ Insurances Cases 61-687 at [70] are in point:
" … Where the plaintiff gives evidence that his income tax returns do not disclose the full extent of his earnings, a court will scrutinise the plaintiff's evidence with special care. The want of honest compliance with the taxation laws is a matter that will reflect adversely on the plaintiffs (sic) credit and may lead to the rejection of his evidence as untrustworthy, at least about his earnings. In such a case the plaintiff has only himself to blame if damages are assessed in line with the pre-accident income actually disclosed to the revenue authority. However, where the fact of the receipt of other income is proved, then, in my view, the plaintiff is entitled to have that exercise of his earning capacity brought to account, although subject to reduction for the income tax which should have been paid, and subject to the question whether the plaintiff would have continued to exercise that capacity had he been required to pay tax on the additional income: see McIntosh v Williams [1976] 2 NSWLR 237 at 244, 252. Melino v Ken Eustice Motors (North Road) Pty Ltd (1984) 111 LSJS 296 at 308-310 is an example of a case where undisclosed income was proved and brought to account."
17
For these reasons I consider that the appellant is correct in contending that the primary judge erred in deducting the lease payments of $330 per week from the net weekly income figure of $430 per week for which the appellant contended.