Accent Management Ltd v Attorney-General - [2013] NZHC 1447

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-0006 [2013] NZHC 1447

IN THE MATTER OF A Decision of the High Court as a deemed hearing authority dated 20 December 2004

BETWEEN ACCENT MANAGEMENT LIMITED Plaintiff

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND
First Defendant

ANDTHE COMMISSIONER OF INLAND REVENUE
Second Defendant

Hearing: 6 June 2013

Appearances: G A Muir for the Plaintiff
B Brown QC and R L Roff for the Defendants

Judgment: 17 June 2013

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Monday 17 June 2013 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:
G A Muir, Muir Law, Auckland
B Brown QC, Wellington
R L Roff, Crown Law, Wellington

ACCENT MANAGEMENT LIMITED v THE ATTORNEY-GENERAL OF NEW ZEALAND [2013] NZHC
1447 [17 June 2013]

Introduction

[1] The defendants have properly raised as a threshold issue whether this Court has jurisdiction to entertain and determine the plaintiff’s statement of claim. Rule
5.49 of the High Court Rules has been invoked.

The claim

[2] The plaintiff’s amended statement of claim pleads two causes of action. The first seeks to set aside a High Court judgment delivered by Venning J in December
2004.1 The pleading alleges the High Court, as a “deemed hearing authority”,

purportedly exercised powers under s 138P of the Tax Administration Act 1994 (the

TAA) but made orders which were of no effect.

[3] The second cause of action seeks declarations that, by the same judgment, the

High Court exceeded the jurisdiction and powers conferred on it by ss 138B and

138P of the TAA.

[4] As will become apparent from the following brief narrative, the judgment of Venning J which the plaintiff seeks to set aside was unsuccessfully appealed to the Court of Appeal,2 and subsequently upheld by the Supreme Court.3 Thus the relief the plaintiff seeks 8½ years later, to have a judgment which has been scrutinised by two appellate courts set aside and declared to be in excess of this Court’s jurisdiction, is startling. Indeed, in terms of any conventional analysis, the
proposition is preposterous. This issue lies at the heart of the defendants’ protest to

jurisdiction.

Background

[5] The briefest of backgrounds will suffice. The plaintiff, and indeed a large number of other taxpayers, were investors participating in a syndicate designed to

1      Accent Management Ltd & Ors v Commissioner of Inland Revenue (2004) 22 NZTC 19,027 (HC).
2      Accent Management Ltd & Commissioner of Inland Revenue [2007] NZCA 230, (2007) 23
NZTC 21,323 (CA).
3      Under the name Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2008] NZSC 115, [2009] 2 NZLR 289 (SC), and an addendum at [2009] 2 NZLR 358.

carry out a forestry business on land indirectly owned by Trinity Foundation Charitable Trust. Silviculture was probably of secondary interest to the taxpayers. The scheme’s primary attraction was that its structure purportedly provided taxpayers with the opportunity to claim substantial write-offs.

[6] It…

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: [2013] NZHC 1447
Decision Date: 17 June 2013

CaseChat Overview and Summary

Accent Management Ltd sought to challenge a High Court judgment from 2004, which had been upheld by the Supreme Court. The plaintiff's amended statement of claim pleaded two causes of action. The first sought to set aside a High Court judgment delivered by Venning J in December 2004. The second sought declarations that, by the same judgment, the High Court exceeded the jurisdiction and powers conferred on it by ss 138B and 138P of the TAA. The defendants raised a protest to the jurisdiction of the Court under Rule 5.49 of the High Court Rules. The plaintiff's proceeding was dismissed and the plaintiff ordered to pay the reasonable indemnity costs and disbursements of the second defendant. The Court found that the plaintiff's proceeding represented a collateral attack on not one but two judgments of the Supreme Court. The Court also found that the proceeding was an impermissible attack on Venning J's 2004 judgment and that the Court was functus officio and lacked jurisdiction to entertain the relief sought in the plaintiff's statement of claim.

Orders