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Accent Management Ltd v Attorney-General

Accent Management Ltd v Attorney-General

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA541/2013
[2014] NZCA 351

BETWEEN

ACCENT MANAGEMENT LIMITED
Appellant

AND

ATTORNEY-GENERAL
First Respondent

COMMISSIONER OF INLAND REVENUE
Second Respondent

Hearing:	18, 19 and 20 March 2014 (further submissions received 15 April 2014)
Court:	O’Regan P, Stevens and Wild JJ
Counsel:	G A Muir for Appellant K L Clark QC and S J Leslie for Respondents
Judgment:	5 August 2014 at 12 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must pay the costs of the respondents on an indemnity basis plus usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

This is an appeal against a judgment of Priestley J in which he upheld a protest to jurisdiction by the respondents, the Attorney-General and the Commissioner of Inland Revenue (the Commissioner), and therefore dismissed an application made by the appellant, Accent Management Ltd (Accent).[1]
[1]Accent Management Ltd v Attorney-General [2013] NZHC 1447, (2013) 26 NZTC 21,020.
We heard the appeal along with four other appeals involving Accent or other parties to an arrangement, known as the Trinity tax scheme: CA632/2013, CA633/2013, CA791/2013 and CA23/2014. The present panel has also dealt with two associated appeals on the papers: CA51/2014 and CA55/2014. The judgments relating to all of those appeals are being delivered at the same time as this judgment.

Accent’s High Court application

Accent’s application to the High Court sought, among other things, an order setting aside a decision in which the High Court ruled that the Trinity scheme, was a tax avoidance arrangement.[2] (We will call the judgment that Accent sought to have set aside Accent 2004). Accent 2004 upheld assessments made by the Commissioner and dismissed the taxpayers’ challenge to those assessments. Accent 2004 was upheld on appeal to this Court[3] and to the Supreme Court.[4] This proceeding is one of a long line of cases by parties to the Trinity scheme seeking to challenge the adverse decisions of the High Court, Court of Appeal and Supreme Court in the tax avoidance proceedings described above.[5]
[2]Accent Management Ltd v Commissioner of Inland Revenue (2005) 22 NZTC 19,027 (HC). An application for recall of this judgment was dismissed: Accent Management Limited v Commissioner of Inland Revenue (2006) 22 NZTC 19,758 (HC) [Recall application].
[3]Accent Management Ltd v Commissioner of Inland Revenue [2007] NZCA 230, (2007) 23 NZTC 21,323. An appeal against the decision of the High Court refusing to recall its judgment was heard at the same time and was also dismissed: Accent Management Ltd v Commissioner of Inland Revenue [2007] NZCA 231, (2007) 23 NZTC 21,366 [Recall appeal].
[4]Ben Nevis Forestry Ventures Limited v Commissioner of Inland Revenue [2008] NZSC 115, [2009] 2 NZLR 289 [Ben Nevis 2008].
[5]Other parties involved in the Trinity tax scheme were Clive Richard Bradbury, Bristol Forestry Venture Ltd (Bristol), Gregory Alan Peebles and Ben Nevis Forestry Ventures Ltd (Ben Nevis) were originally parties to the present litigation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZCA 351
Decision Date: 5 August 2014 at 12 pm

CaseChat Overview and Summary

Accent Management Ltd appealed against a judgment of Priestley J in which he upheld a protest to jurisdiction by the Attorney-General and the Commissioner of Inland Revenue and dismissed Accent’s application for, among other things, an order setting aside a decision in which the High Court ruled that the Trinity tax scheme was a tax avoidance arrangement. The Court of Appeal dismissed the appeal and ordered that Accent pay the respondents’ costs on an indemnity basis plus usual disbursements. The Court found that Accent’s application was an abuse of the Court’s process and that the principle of finality applied. The High Court was functus officio and therefore had no jurisdiction to consider Accent’s claim. The Court found that the appeal was untenable, and therefore ordered that Accent pay the respondents’ costs on an indemnity basis plus usual disbursements.

Orders