Commissioner of Inland Revenue v Oyster Entertainment Limited

[2014] NZHC 2195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004964 [2014] NZHC 2195

IN THE MATTER

of the Companies Act 1993

BETWEEN

THE COMMISSIONER OF INLAND REVENUE

Plaintiff

AND

OYSTER ENTERTAINMENT LIMITED Defendant

Hearing:	5 September 2014
Appearances:	Mr C Van Der Merwe for Commissioner Mr Duane Wichman-Evans - self represented shareholder Mr R Sena for the Official Assignee
Judgment:	5 September 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

THE COMMISSIONER OF INLAND REVENUE v OYSTER ENTERTAINMENT LIMITED [2014] NZHC

2195 [5 September 2014]

[1]      Mr Duane L Wichman-Evans has filed an application seeking an order for termination of Oyster Entertainment Limited which is in liquidation.  Essentially he considers that if accounts between the company of which he is a director and the Commissioner could be re-calculated on the basis of fresh returns then there would be no debt to support the continued liquidation and the liquidation could be discharged or annulled.

[2]      I have pointed out to Mr Wichman-Evans this morning after discussion with counsel  for  the  Commission  of  Inland  Revenue  and  the  Official Assignee  that because that point has not yet been reached (and probably will never be able to be) there is no basis for ending the liquidation.     The procedures that directors/shareholders of the company would have to negotiate to get to the point where a reconsideration of the liquidation could be undertaken by the Official Assignee are complex and will cost money.  The Inland Revenue is not prepared to re-visit the assessments that underlie the CIR’s debt without financial contribution from a third party (whether Mr Wichman-Evans or someone else).  So long as the Official Assignee who is the correct party to take such matters up with the IRD is concerned is not prepared to do so there is little hope, I’m afraid, that the point will ever be reached where the assessments are overturned.   That being so it seems almost certain that the existing debt of approximately $200,000 will remain unpaid and that being so there will be no possible basis for a termination of the liquidation of the company.   Therefore the application which Duane Leslie Wichman-Evans filed 5 August 2014 is struck-out.

[3]      The Commission of Inland Revenue has sought costs on the application.   I consider that given the position of the applicant is that he brought proceedings in good faith, albeit mistakenly, that this is a case where exceptionally the discretion of the Court to award costs in favour of the successful party should not be followed.

There will be no order for costs.

J.P. Doogue

Associate Judge