Fb Duvall Ltd v Commissioner of Inland Revenue

[2009] NZCA 413

IN THE COURT OF APPEAL OF NEW ZEALAND

CA753/2008
[2009] NZCA 413

BETWEENFB DUVALL LIMITED

Appellant

ANDCOMMISSIONER OF INLAND REVENUE

Respondent

Hearing:16 September 2009

Court:Hammond, Harrison and Miller JJ

Counsel:S R G Judd for Appellant

C K Wood and R J Wallace for Respondent

Judgment:16 September 2009 

ORAL JUDGMENT OF THE COURT

A        The appeal is dismissed for want of jurisdiction. 

B        There will be no order for costs.

CThe proceeding is remitted to the High Court for such further orders or directions as the Associate Judge may make.

REASONS OF THE COURT

(Given by Hammond J)

[1]       This appeal was listed for hearing before us today.

[2]       In our view, there is no present jurisdiction for the appeal.  The appellant seeks to appeal a judgment of Associate Judge Doogue concerning a statutory demand and related matters under the Companies Act 1993: HC AK CIV 2007-404-2708 13 November 2008.

[3]       It is a fundamental appellate principle that what has to be appealed is a judgment, decree or order of the High Court (see s 66 Judicature Act 1908).  That is, a party appeals the judgment, not any observations in it, provisional findings of a Judge, or even the reasons of the Judge.  There must be an appealable judgment. 

[4]       It is possible to appeal prior to the sealing of a judgment, but if that step is taken the judgment must nevertheless be sealed without delay after the appeal is brought, and before it is brought on for hearing (see r 11.13(2) of the High Court Rules).

[5]       On 13 November 2008, Associate Judge Doogue delivered the reserved judgment under appeal in this case.  He dismissed arguments in support of the two grounds which are now under appeal.  He was not satisfied that Duvall had proven it was able to pay its debts: s 287(a) Companies Act.  And he declined to exercise his discretion against appointing a liquidator: s 241(4) Companies Act.  However, he adjourned the proceeding until 5 December 2008 for further mention, at the request of Duvall’s counsel, in order to allow it an opportunity to make payment before ordering the appointment of liquidators: at [25]-[26].  Duvall filed this appeal on 4 December, and the proceeding in the High Court has remained in abeyance in the interim.

[6]       In our view, we are without jurisdiction.  There is no judgment in the Judicature Act sense.  In any event, there is non-compliance with r 11.13.  And the reason there is non-compliance with that rule is likely that it would in any event have been impossible to seal a judgment, on the basis of what the Judge had said.

[7]       The appeal is accordingly dismissed for want of jurisdiction.  It is remitted to the Associate Judge for such further orders or directions as he may consider appropriate. 

[8]       This point should have been raised by counsel for the Commissioner of Inland Revenue.  There will therefore be no order for costs.

Solicitors:
Ladbrook Solicitors, Auckland for Appellant
Meredith Connell, Auckland for Respondent