Legal Research
Cases
Bowlin v Police

Bowlin v Police

Case [2014] NZHC 2635 24 October 2014

Jurisdiction

Judicial Review

Natural Justice & Procedural Fairness

Admissibility of Evidence

Compensatory Damages

Administrative Law

Taxation Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1196 [2014] NZHC 2635

IN THE MATTER of the Judicature Amendment Act 1972

BETWEEN

GREGORY ALAN PEEBLES and CLIVE RICHARD BRADBURY

First Applicants

BEN NEVIS FORESTRY VENTURES LIMITED and BRISTOL FORESTRY VENTURE LIMITED

Second Applicants

AND

ATTORNEY-GENERAL First Respondent

COMMISSIONER OF INLAND REVENUE

Second Respondent

Hearing: 12 and 13 June 2014

Appearances:

G J Judd QC for Applicants
R L Roff and S J Leslie for Second Respondent

Judgment:

24 October 2014

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 24 October 2014 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Wynyard Wood, Auckland
Crown Law, Wellington

Counsel: G J Judd QC, Auckland

PEEBLES v ATTORNEY-GENERAL [2014] NZHC 2635 [24 October 2014]

Introduction

[1] The Plaintiffs seek judicial review of a decision made by the Respondent (“Commissioner”) to issue and/or continue proceedings against Mr Peebles and Mr Bradbury, the First Plaintiffs, to recover unpaid tax (“recovery proceedings”).

[2] The Second Plaintiffs (“Ben Nevis” and “Bristol” respectively, and together “the LAQCs”) are Loss Attributing Qualifying Companies. Mr Peebles holds the shares in Ben Nevis and Mr Bradbury the shares in Bristol.

[3] The Commissioner issued the recovery proceedings in December 2013. Their purpose is to obtain judgment, in fact summary judgment, for sums which the Commissioner contends Mr Peebles and Mr Bradbury owe in respect of the 1997 and
1998 income tax years. Mr Peebles and Mr Bradbury are defending the proceedings and opposing the application for summary judgment.

[4] Between February and May 2014, the Plaintiffs made two requests of the

Commissioner. The first was that the Commissioner reassess their liability for the

1997 and 1998 years under the accruals rules in subpart EH Income Tax Act 1994 (“accruals rules” and “ITA 1994” respectively), and issue fresh assessments in respect of the same. The second was that the Commissioner discontinue the recovery proceedings until liability had been so reassessed.

[5] On 26 May 2014 the Commissioner decided, and advised the Plaintiffs, that she would not amend the assessments and she would not discontinue the recovery proceedings. The Plaintiffs had already commenced this application for review in anticipation of a forthcoming hearing of the Commissioner’s application for summary judgment but on receipt of the Commissioner’s response they amended their statement of claim and the hearing followed shortly thereafter.

[6] Although in their statement of claim the Plaintiffs seek review of both the refusal to reassess and the refusal to discontinue,1 at the hearing they narrowed their

1 Amended Statement of Claim dated 3 June 2014.

case to seek review only of the refusal to discontinue.2 This refusal is referred to below as the “collections decision”.

[7] The essence of the Plaintiffs’ case as regards the collections decision is that the Commissioner has a duty not to seek to recover more tax than is properly payable and that the Commissioner failed to have regard to that duty, and so made…

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.

Continue reading Bowlin v Police

Details

AGLC: Bowlin v Police [2014] NZHC 2635
Case: [2014] NZHC 2635
Decision Date: 24 October 2014

CaseChat Overview and Summary

The case of Bowlin v Police involved a legal dispute between the plaintiffs, Peebles and Bradbury, and the Commissioner of Inland Revenue. The plaintiffs sought judicial review of the Commissioner's decision to pursue recovery proceedings against them for unpaid taxes. The plaintiffs argued that the Commissioner had a duty to not seek to recover more tax than was properly payable and that she had failed to consider this duty when making her decision. The Commissioner opposed the application on the grounds that her decision to pursue recovery proceedings was not amenable to review, that she was not subject to any duty as alleged by the plaintiffs, and that relief should be declined on the basis that this application was another attempt by the plaintiffs to avoid or delay meeting their obligations.

The court considered the arguments made by both parties and ultimately concluded that the Commissioner was not subject to a duty to recalculate the amount of tax before making the collections decision. The court found that the Commissioner was entitled to seek to collect the amount for which the plaintiffs were assessed and that the sums assessed were due and had been since the Supreme Court delivered its judgment. The court dismissed the application for judicial review, finding that no ground of review had been made out. The final orders of the court were that the application for judicial review be dismissed and that the plaintiffs bear the costs of the application.

Orders