Commissioner of Inland Revenue v Chesterfields Preschools Limited

[2009] NZCA 253

IN THE COURT OF APPEAL OF NEW ZEALAND

CA607/2008
CA800/2008
CA271/2009
[2009] NZCA 253

BETWEENTHE COMMISSIONER OF INLAND REVENUE

Applicant

ANDCHESTERFIELDS PRESCHOOLS LIMITED

First Respondent

ANDD J HAMPTON

Second Respondent

ANDCHESTERFIELDS PARTNERSHIP

Third Respondent

ANDCHESTERFIELD PRESCHOOLS PARTNERSHIP

Fourth Respondent

ANDANOLBE ENTERPRISES LIMITED

Fifth Respondent

Hearing:16 June 2009

Appearances:  E Aspey for Applicant

D J Hampton in person

Judgment:16 June 2009 

JUDGMENT OF THE COURT

AInterim orders for stay of execution in terms of the application until 18 August 2009.

BApplication for permanent stay to be listed in the Miscellaneous Motions list for 18 August 2009.

CCosts reserved.

REASONS OF THE COURT

(Given by Hammond J)

[1]       We have before us an application for an interim order for a stay of execution in relation to three consolidated tax appeals, CA607/2008, CA800/2008 and CA271/2009.  Certain orders as set out in paragraph 1 of the application were made by Fogarty J in the underlying proceedings in the High Court

[2]       The application is made because, absent such a stay, it is said that the appeals will be rendered nugatory in that the Commissioner would be required to give irreversible effect to those directions and orders; the respondents are probably insolvent and there is no security for possible repayment of the costs to be paid; and third parties are not prejudiced.

[3]       We are satisfied that the appeals raise arguable and important issues of principle as to taxation law; and that the orders are necessary to preserve the status quo and to protect the public revenue, pending determination of the principal stay application.

[4]       Mr Hampton appeared in person before us today and in the particular circumstances, and having regard to the practicalities of the matter, he did not object to an interim order being made today although, of course, he reserves his or counsel’s position in opposing a permanent stay in due course.

[5]       There will therefore be interim orders in terms of the application until 18 August 2009.  The application for a permanent stay is to be listed in the Miscellaneous Motions list for that day.  For the benefit of the Registrar, no more than one hour should be required for that matter.  Costs are reserved on today’s application.

[6]       I add that the panel has indicated to Mr Hampton today that consideration needs to be given to whether he can represent the companies on that occasion.  The normal rule would be that counsel should be instructed.

Solicitors:
Crown Law Office, Wellington