Chesterfields Preschools Ltd v Commissioner of Inland Revenue

[2011] NZCA 640

IN THE COURT OF APPEAL OF NEW ZEALAND

CA652/2011
[2011] NZCA 640

BETWEEN  CHESTERFIELDS PRESCHOOLS LIMITED
First Applicant

AND  DAVID JOHN HAMPTON
Second Applicant

AND  D J HAMPTON AND T A SISSON TRADING AS CHESTERFIELDS PARTNERSHIP
Third Applicant

AND  D J HAMPTON AND T A SISSON TRADING AS CHESTERFIELDS PRESCHOOLS PARTNERSHIP
Fourth Applicant

AND  ANOLBE ENTERPRISES LIMITED
Fifth applicant

AND  THE COMMISSIONER OF INLAND REVENUE
Respondent

AND  PHILIP JOHN SHAMY
Second Respondent

Court:             Arnold, Randerson and Stevens JJ

Counsel:         Applicants in person through Mr D J Hampton
J Pike for Respondents

Judgment:      12 December 2011 at 4 p.m.

(On the papers)

JUDGMENT OF THE COURT

The applicants, jointly and severally, must pay one set of costs for both respondents as for a standard application on a band A basis with usual disbursements as fixed by the Registrar.

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REASONS OF THE COURT

(Given by Randerson J)

1. The applicants purported to file an appeal on 5 September 2011 against a judgment of Associate Judge Osborne striking out parts of the applicants’ proceedings against the respondents in the High Court.

2. The appeal was not filed in accordance with the Rules, since the documents were sent by facsimile.

3. The appeal documents were later filed correctly and the applicants applied on 30 September 2011 for an extension of time.  By letter of 1 November 2011, the Registrar informed the applicants that the application would be set down for hearing in the Miscellaneous Motions list on 29 November 2011.  As required, the respondents filed a memorandum of opposition as well as preparing and filing submissions in respect of the application.

4. On 18 November 2011, the applicants filed a notice of abandonment of the appeal stating that the applicants had filed substantially amended pleadings following the judgment of the Associate Judge.  The respondents advise that the remainder of the judgment of the Associate Judge is currently the subject of review proceedings before the High Court in Christchurch (presumably upon the respondents’ application).

5. The respondents seek costs from the applicants in consequence of the abandonment.  They submit that they have been put to unnecessary cost and expense.  They submit there was no jurisdiction for the intended appeal directly to the Court of Appeal and note that the applicants have exercised a right of review in the High Court.

6. The applicants resist an award of costs submitting that costs should lie where they fall on the grounds of hardship and access to justice.  They submit that their failure to correctly file the documents resulted from a lack of experience, the notice of abandonment was properly notified, the matters at issue relate to misfeasance proceedings against the Inland Revenue Department, and that the second respondent’s costs are likely to be paid by the Department.

7. We are not persuaded that there should be any departure from the ordinary rule that the costs of an application such as this should follow the event.  Hardship is not usually regarded as a ground to resist an award of costs in circumstances where the opposite party has been put to unnecessary expense in responding to an application or appeal.  Who will pay the second respondent’s cost is irrelevant.

8. In the circumstances, there will be an order that the applicants, jointly and severally, must pay the respondents’ costs as for a standard application on a band A basis with usual disbursements as fixed by the Registrar.  There is to be one set of costs for both respondents.

Solicitors:
Edgeware Law Centre, Christchurch for Applicants
Crown Law Office, Wellington for Respondents