Issued
2009
Decision
08 Dec 2009
Appeal Status
Appealed

Taxpayers refused leave to appeal to Supreme Court

2009 case note – Taxpayers were refused leave to appeal to the Supreme Court as they failed to demonstrate the appeal was necessary in the interest of justice.

Case
Chesterfields Preschools Ltd & Ors v the Commissioner of Inland Revenue
Legal terms
Leave to appeal; interlocutory decision; interests of justice

Summary

The taxpayers were refused leave to appeal to the Supreme Court on an interlocutory ruling of the Court of Appeal as they failed to demonstrate the appeal was necessary in the interest of justice.

Impact of decision

There are strict criteria in the Supreme Court Act for the grant of leave. This decision clearly sets out those criteria.

Facts

The applicants include companies controlled by the second applicant, David John Hampton, a Christchurch property developer. There have been many court proceedings.

Certain actions and decisions of the Commissioner were judicially reviewed by the applicants. The High Court in Christchurch found for the applicants and directed the Commissioner to re-make certain decisions regarding remission of tax debts. The Commissioner reconsidered these matters and made certain amendments. Nonetheless these decisions were again brought before the Court in a second judicial review. The Court again held that the Commissioner had not followed the Court's directions in the earlier review. Accordingly costs were awarded against the Commissioner which approached the level of indemnity costs.

The Commissioner appealed both the judicial review decision and the award of costs. The judicial review was to be heard by the Court of Appeal in early 2010. In the meantime the Commissioner applied for a stay of the execution of orders for costs. The Court of Appeal granted the stay pending the appeal of the judicial review. The applicants sought leave to appeal that decision to the Supreme Court.

Decision

The entire decision reads as follows:

  1. The applicants seek leave to appeal from an interlocutory decision of the Court of Appeal in which that Court, in its discretion, stayed the execution of orders for costs which the High Court had made against the respondent Commissioner in judicial review proceedings between the parties.
  2. Leave to appeal to this Court should be refused because the applicants have not established that a grant of leave is necessary in the interests of justice. The Court of Appeal's decision was made in the particular context of the present case. No matter of general or public importance or of general commercial importance is involved. Nor is there any appearance of a miscarriage of justice as a result of the applicants being unable to enforce the costs orders made in their favour by the High Court, pending the Court of Appeal's determination of the respondent's substantive appeal.
  3. Furthermore, section 13(4) of the Supreme Court Act provides that this Court must not give leave to appeal from an order made by the Court of Appeal on an interlocutory application unless it is necessary to do so in the interests of justice. That has not been shown in this case. If anything, it would be unjust to the Commissioner to allow the costs orders against him to be enforced before his substantive appeal is determined.

 

Supreme Court Act 2003