Commissioner of Inland Revenue v Tailor

[2023] NZHC 3452

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-936

[2023] NZHC 3452

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of JYOTIN TAILOR

BETWEEN

THE COMMISSIONER OF INLAND REVENUE

Judgment Creditor

AND

JYOTIN TAILOR

Judgment Debtor

CIV-2021-404-937

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of BEENA JYATIN TAILOR

BETWEEN

THE COMMISSIONER OF INLAND REVNEUE

Judgment Creditor

AND

BEENA JYATIN TAILOR

Judgment Debtor

Hearing:

On the papers

Appearances:

V S Young for Judgment Creditor

No appearance for the Judgment Debtors

Judgment:

30 November 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

COMMISSIONER OF INLAND REVENUE v TAILOR [2023] NZHC 3452 [30 November 2023]

This judgment was delivered by me on 30 November 2023 at 3.45 pm pursuant to rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

[1]                 On 7 September 2023, I dismissed applications by Mr and Mrs Tailor for orders annulling their adjudications in bankruptcy for reasons that I subsequently set out in a reasons judgment of 8 September 2023.1

[2]                 Mr and Mrs Tailor have filed applications asking me to recall my judgment on the ground that a miscarriage of justice has occurred.

[3]The applications engage r 11.9 of the High Court Rules 2016, which provides:

Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[4]                 The leading statement in New Zealand of the circumstances in which the Court will exercise its discretion to recall a judgment was set out by Wild CJ in Horowhenua County v Nash (No. 2) as follows:2

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[5]                 I note also that it is not unusual for such applications to be considered on the papers, and I am doing so in this case.3

[6]                 None of the grounds for recalling my judgment have been made out by Mr and Mrs Tailor.

[7]                 They have filed identical applications in which they say they were not aware they had to attend court in person on 7 September 2023 and had waited for a telephone call from the Judge. They say they had asked an unidentified case manager whether they had to appear in person or there would be a telephone conference but got no

1      Commissioner of Inland Revenue v Tailor [2023] NZHC 2520.

2      Horowhenua County v Nash (No. 2) [1968] NZLR 632 (SC) at 633.

3      HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2701 at [32].

answer, and therefore believed there would be a telephone conference. They say they were entitled to receive a correct answer from the case manager and missed their opportunity to appear in court. They also say they were incorrectly declared bankrupt and are entitled to annulment of their bankruptcies.

[8]                 Although both Mr and Mrs Tailor have filed an affidavit, those affidavits do not deal with any of the matters in [7] above. They have also provided no explanation for why it has taken almost three months to make their applications.

[9]                 The applications raise no new matters that were not dealt with in my judgment of 8 September. I was satisfied then, and remain satisfied, that Mr and Mrs Tailor were aware of the hearing date, and there was no reason for any confusion as to whether the hearing would be by telephone conference or in-person hearing.

[10]              In addition, for the reasons set out in my judgment of 8 September, there is no prospect of Mr and Mrs Tailor’s applications for annulment succeeding, and recalling my judgment would simply serve no purpose. I note in this regard that, since my judgment was issued, the Court of Appeal has dismissed a second attempt by Mr and Mrs Tailor to have it recall its judgment dismissing their application for an extension of time to appeal from their adjudications.4

[11]              It appears from the judgment debtors’ several recall applications filed in this Court and the Court of Appeal that they have not understood the reasons that prevent them from challenging or obtaining annulment of their adjudications in bankruptcy. There may be a path forward for them, but it is not the one they are presently taking, and I would urge them to seek advice from a lawyer as to their options in this regard.

Result

[12]              The application by Mr and Mrs Tailor for recall of my judgment is dismissed. There shall be no order for costs.

4      Tailor v Commissioner of Inland Revenue [2023] NZCA 559.

[13]              The Commissioner of Inland Revenue and the Official Assignee should be provided with a copy of this judgment.

O G Paulsen Associate Judge

Solicitors:

Legal Services, Inland Revenue, Auckland

Copy to:

Commissioner of Inland Revenue Official Assignee