Commissioner of Inland Revenue v Tailor

[2023] NZHC 2520

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-936

[2023] NZHC 2520

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 REVENUE

Judgment Creditor

AND

BEENA JYATIN TAILOR

Judgment Debtor

Hearing:

7 September 2023

Appearances:

V S Young for Judgment Creditor

No appearance by the Judgment Debtors

Judgment:

8 September 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

COMMISSIONER OF INLAND REVENUE v TAILOR [2023] NZHC 2520 [8 September 2023]

This judgment was delivered by me on 8 September 2023 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]                Mr and Mrs Tailor were adjudicated bankrupt on 22 September 2022 by order of Associate Judge Gardiner.

[2]                In the Miscellaneous List on 7 September 2023 were applications by Mr and Mrs Tailor for orders annulling their adjudications in bankruptcy.

[3]                Mr and Mrs Tailor did not appear at the hearing. After hearing from counsel for the Commissioner of Inland Revenue, I dismissed both applications and advised that I would issue my reasons. These are those reasons.

[4]                I was satisfied that Mr and Mrs Tailor were aware of the hearing. The hearing date appears on their applications. They did not advise the Court that they would not be appearing at the hearing, nor did they seek an adjournment. It was only after the hearing that Mrs Tailor sent an email to the Registry suggesting there was confusion whether the hearing was to be by telephone. I do not accept there was any reason for confusion as there was nothing to suggest the hearing would be by telephone.

[5]                The applications are irregular. They do not comply with the High Court Rules. They are not supported with any affidavit evidence. The Commissioner has been named as a party when the correct respondent is the Official Assignee.1 There is no evidence that either the Commissioner or the Official Assignee were served with the applications. Ms Young appeared for the Commissioner. She advised the Commissioner was not served, and she had no knowledge of the content of the applications.

[6]                The applications stand no prospect of success. They are made in reliance upon s 309(1)(a) of the Insolvency Act which provides that the Court may annul an adjudication in bankruptcy if it considers that the bankrupt should not have been adjudicated bankrupt. It is not open to this Court to reach such a conclusion. First, because there is no evidence to support the applications. Second, because the issues Mr and Mrs Tailor raise have already been dealt with by the Court of Appeal.

1      Insolvency Act 2006, s 309(2).

[7]                On 17 May 2023, the Court of Appeal refused Mr and Mrs Tailor an extension of time to appeal from their adjudications.2 The Court of Appeal considered that no purpose would be served by granting them extensions of time as the tax assessments upon which the bankruptcy proceedings were founded were deemed to be correct unless challenged under the relevant provisions of the Tax Administration Act 1994, and Mr and Mrs Tailor had failed to do so. An application by Mr and Mrs Tailor for recall of that judgment was declined.3

[8]                Ms Young advised me that she understands a further application to recall the Court of Appeal’s judgment has been made. Be that as it may, at the present time the decisions of the Court of Appeal stand and satisfy me that the pursuit of these applications is futile.

[9]                Mr and Mrs Tailor raise no additional matters which could possibly justify granting their applications to annul their adjudications.

Result

[10]             The applications by Mr and Mrs Tailor to annul their adjudications in bankruptcy are dismissed.

[11]             The Commissioner has not sought costs and there shall be no order for costs accordingly.

[12]The Official Assignee is to be provided with a copy of this judgment.

O G Paulsen Associate Judge

2      Beena Jyatin Tailor v Commissioner of Inland Revenue [2023] NZCA 178 at [4]-[5], citing Smith

v Commissioner of Inland Revenue v Smith [2019] NZCA 521.

3      Beena Jyatin Tailor v Commissioner of Inland Revenue [2023] NZCA 306.

Solicitors:

Legal Services, Inland Revenue, Auckland