Fb Duvall Ltd v Commissioner of Inland Revenue

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

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal in the case of Fb Duvall Ltd v Commissioner of Inland Revenue. The appellant, Fb Duvall Ltd, sought to challenge a judgment from an Associate Judge related to a statutory demand and associated matters under the Companies Act 1993. The appeal aimed to address the Associate Judge's dismissal of arguments concerning the company's ability to pay debts and the refusal to exercise discretion against appointing a liquidator. The appeal was filed on 4 December, shortly before the proceeding was adjourned to allow the company to make payment before the appointment of liquidators.

The central legal issue before the Court of Appeal was whether it had the jurisdiction to hear the appeal. The Court considered whether the appeal was based on a judgment in the sense required by the Judicature Act 1908, and whether the procedural rules were properly followed. The Court determined that there was no final judgment as required by the Act, as the proceeding had been adjourned without a final decision. Furthermore, the Court noted that the Associate Judge had not sealed a judgment, which is a necessary step for an appeal. These factors led the Court to conclude that it lacked jurisdiction to hear the appeal.

The Court of Appeal dismissed the appeal for want of jurisdiction. The Court found that there was no appealable judgment in the sense required by the Judicature Act. It also noted that the procedural rules, specifically High Court Rule 11.13, had not been followed. The Court further determined that the non-compliance with the rule likely rendered it impossible to seal a judgment. As a result, the appeal was dismissed, and the case was remitted to the Associate Judge for any further orders or directions that might be necessary. There was no order for costs, as the point of jurisdiction should have been raised by the Commissioner's counsel.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established