Chesterfields Preschools Limited v Sisson

[2016] NZHC 2368

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000040 [2016] NZHC 2368

BETWEEN

CHESTERFIELDS PRESCHOOLS

LIMITED Plaintiff

AND

THERESE ANNE SISSON Defendant

CIV-2016-409-000185

BETWEEN  THERESE ANNE SISSON Plaintiff

ANDOFFICIAL ASSIGNEE First Defendant

ANDCOMMISSIONER OF INLAND REVENUE

Second Defendant

CIV-2015-409-000043

BETWEEN  COMMISSIONER OF INLAND REVENUE

Plaintiff

ANDCHESTERFIELDS PRESCHOOLS LIMITED

First Defendant

ANDTHERESE ANNE SISSON Second Defendant

Hearing:

3 October 2016

Representation:

T A Sisson in person with D J Hampton as McKenzie Friend S M Kinsler and C L Russell for Commissioner of Inland Revenue

G E Slevin for Official Assignee
B M Russell and K M Kendrick for Chesterfields

Preschools (in liq)

M Mitchell for IAG, an affected party (appearing, but not

CHESTERFIELDS PRESCHOOLS LIMITED v SISSON [2016] NZHC 2368 [5 October 2016]

making submissions)
Judgment:	5 October 2016

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

dismissing stay application

Background

[1]      Therese Sisson (with her former husband, David Hampton) was involved in the business of Chesterfields Preschools Ltd (now in liquidation) and associated entities.  Issues over taxation led to much litigation between the Sisson interests and the Commissioner of Inland Revenue over many years.   The Sisson interests had some success through judicial review and appeal.  But ultimately Chesterfields had an indisputable debt owing to the Commissioner which was not met.   This Court made an order putting Chesterfields into liquidation in October 2015.

Two proceedings to be heard in November 2016

[2]      The first two proceedings which are the subject of this judgment are to be heard in November 2016.  In the -40 proceeding, Chesterfields (in liq) seeks orders (amongst others) vesting a Colombo Street property and certain insurance proceeds in Chesterfields.  The Commissioner is an intervener – she is the principal creditor in Chesterfields’ liquidation and was joined for the purpose of providing evidence and submissions which may assist the Court to determine the application.

[3]      In the -185 litigation, Ms Sisson seeks a declaration that as trustee of the Anolbe Family Trust, she is entitled to the proceeds of the sale of a Christchurch property which are held by the Official Assignee in the bankruptcy of Mr Hampton.

Third proceeding – the Chesterfields liquidation proceeding

[4]      The Chesterfields liquidation proceeding concluded, as I have indicated, with an order putting Chesterfields into liquidation in October 2015.  An appeal was filed but was subsequently deemed abandoned.

Current proceedings

[5]      The three proceedings which are the subject of this judgment are not the only current proceedings in which Ms Sisson has until now been involved.

[6]      Yesterday  I  heard  and  granted  a  strike  out  application  in  relation  to  a proceeding  commenced  by Ms  Sisson  against  the  Commissioner,  by  which  she sought to have the liquidation of Chesterfields overturned.1

Ms Sisson’s stay application

[7]      Ms Sisson applied for a stay of each of the proceedings which is the subject of this judgment upon the ground that her claims to be pursued in the other proceeding (now struck out) were so related and could affect the outcome of these proceedings that these proceedings needed to be stayed.

Discussion

[8]      It was common ground before the hearing that, were the Court to grant the strike out application, the grounds for stay would fall away.   That is  what has happened.   The applications to stay other proceedings involving Ms Sisson must therefore be dismissed.

[9]      Ms Sisson, as an apparent alternative to a stay of the liquidation proceeding, sought a stay of the enforcement of the liquidation judgment.  The grounds for that stay similarly fell away with the order made yesterday striking out Ms Sisson’s other

proceeding.

1      Sisson v Commissioner of Inland Revenue [2016] NZHC 2367.

[10]     A fifth stay referred to in Ms Sisson’s notice of application was for stay of enforcement of the judgment adjudicating Mr Hampton bankrupt.  Ms Sisson plainly has no standing to make such an application and it will be dismissed.

Order

[11]     I order that the amended application of Ms Sisson dated 16 September 2016 be dismissed.

Costs

[12]     I heard from the parties as to costs.

[13]     Costs would normally follow the event, as I have ordered in relation to the strike out application.2

[14]     On the strike out application, I awarded increased costs by reference to the lack of merit of that proceeding.3

[15]     The case for increased costs is the same in relation to the stay applications in that it was common ground that the proper outcome of these applications turned on the decision in the strike out application.

[16]     The appropriate calculation of increased costs is upon a 2B4  basis with an uplift of 50 per cent. It is appropriate that the Commissioner has her costs on that basis but with no allowance on this award for the time of the interlocutory hearing itself, which has been included in the costs on the strike out application.

[17]     It is appropriate that both the Assignee and Chesterfields have their costs by reference to the appropriate items under Schedule 3, High Court Rules.  Although counsel for those parties attended the interlocutory hearing for more than one half day, that was partly in order to observe the progress of the strike out application.  I

will therefore be certifying for a one half day hearing.

2      Sisson v Commissioner of Inland Revenue [2016] NZHC 2367.

3      Pursuant to High Court Rules, r 14.6(3)(b)(ii).

4      High Court Rule, Category 2 under r 14.3(1) and band B under r 14.5(2).

Costs order

[18]     I order:

(a)      The  applicant,  Therese  Anne  Sisson,  is  to  pay  to  each  of  the respondents, namely Chesterfields Preschools Ltd (in liq), Commissioner of Inland Revenue and Official Assignee, the costs of the stay application calculated on a 2B basis with an uplift of 50 per cent;

(b)In  the  case  of  the  Commissioner  of  Inland  Revenue,  the  costs allowance is not to include Item 26 (for the interlocutory hearing);

(c)      In the case of the Official Assignee and Chesterfields Preschools Ltd (in liq), I certify for a one half day hearing of the interlocutory application;

(d)      There is no certificate for second counsel for any party;

(e)      The  applicant,  Therese  Anne  Sisson,  is  to  pay  to  each  of  the respondents their reasonable disbursements to be fixed by the Registrar;

(f)      There is no  certificate  for the accommodation and travel costs of counsel for the Commissioner of Inland Revenue (which have been

separately certified on the strike out application).

Solicitors:

Lane Neave, Christchurch
Crown Law, Wellington

S Kinsler, Meredith Connell, Wellington

C L Russell, Inland Revenue Department, Wellington

Associate Judge Osborne

G Slevin, Ministry of Business, Innovation and Employment, Christchurch

M Mitchell, Duncan Cotterill, Auckland for IAG

Copy to: T A Sisson, Christchurch