Bowlin v Police

Case [2014] NZHC 2635


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…

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Bowlin v Police [2014] NZHC 2635
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[2014] NZHC 2635
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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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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