Henare v Commissioner of Inland Revenue
[2025] NZSC 95
•4 August 2025
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 60/2025 [2025] NZSC 95 |
| BETWEEN | STEPHEN JAMES HENARE |
| AND | COMMISSIONER OF INLAND REVENUE |
| Court: | Glazebrook, Kós and Miller JJ |
Counsel: | Applicant in person |
Judgment: | 4 August 2025 |
JUDGMENT OF THE COURT
A The application for leave to appeal is dismissed.
B The applicant must pay the respondent costs of $2,500.
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REASONS
Mr Henare seeks leave to appeal a decision of the Court of Appeal which declined his applications (1) for leave to bring a second appeal and (2) for an order requiring provision of a transcript of a prior appeal.[1]
[1]Henare v Commissioner of Inland Revenue [2025] NZCA 170 (Cooke and Hinton JJ) [CA judgment].
As the Commissioner correctly records, the transcript sought was of an appeal heard in the High Court.[2] That appeal was against a decision of the District Court granting summary judgment for unpaid income tax, student loan liabilities, penalties and interest (and costs).[3] The tax assessments arose from Māori land trust funds misappropriated by Mr Henare in 2012 and 2013, and for which crimes he was sentenced to five years’ imprisonment in 2019.[4]
[2]Henare v Commissioner of Inland Revenue [2024] NZHC 2012 (Jagose J).
[3]Commissioner of Inland Revenue v Henare [2023] NZDC 26635 (Judge Sinclair).
[4]R v Henare [2019] NZHC 2126.
The Commissioner then assessed Mr Henare’s taxation liabilities associated with the stolen funds along with certain student loan liabilities. The Commissioner sought summary judgment on the basis that Mr Henare had no defence to the claim as he had not disputed the tax assessments issued under the Tax Administration Act 1994 (TAA). The District Court agreed, finding Mr Henare had not disputed the Commissioner’s assessments within the time frames specified under the TAA and, by reason of s 109, thereby had no defence to the claim. The same conclusion was reached by the High Court on appeal.
Mr Henare sought leave in the Court of Appeal to bring a second appeal, but his application was declined. The Court of Appeal found that, given Mr Henare had not engaged with the statutory disputes procedure at all, an out-of-time challenge under s 138D of the TAA was not practicable and that the Courts below had correctly applied s 109.[5] Nor had Mr Henare sufficiently identified the basis of any challenge to the Commissioner’s assessments, thereby offering an arguable defence.[6] Nor was there any compelling reason to order production of a transcript of the High Court hearing.[7]
Our assessment
[5]CA judgment, above n 1, at [10].
[6]At [12].
[7]At [14] citing Tomar v Khatri [2022] NZCA 61 and Tomar v Khatri [2022] NZCA 119.
Section 68(b) of the Senior Courts Act 2016 precludes a civil appeal to this Court from a decision of the Court of Appeal declining leave to appeal to that Court. We may and do treat this as an application for leave to appeal directly against the High Court decision under ss 69, 73 and 75 of that Act.[8] The augmented leave standard in s 75 then apples: it must not only be necessary in the interests of justice for the this Court to hear the appeal, but there must also be exceptional circumstances justifying direct appeal.
[8]See Cook v Housing New Zealand Corp [2018] NZSC 42 at [7].
Mr Henare’s submissions in support of his application are wide-ranging, but the sole point of substance is his argument that s 11 of the Limitation Act 2010 provides a defence to a money claim if it is filed more than six years after the act or omission on which the claim is based. While that is what the Limitation Act provides, s 163 of the TAA provides the Limitation Act (or any other enactment that prescribes a limitation period or other limitation defence) does not bar relief in respect of a claim for recovery of tax (which includes unpaid sums under the Student Loan Scheme Act 2011).[9]
[9]Section 3 definition of “tax”.
We identify no issue of general, public or commercial importance arising from the proposed appeal.[10] Nor do we see any appearance of a miscarriage of justice as that term is used in the civil context.[11] Nor therefore are there exceptional circumstances making it necessary in the interests of justice for the this Court to hear the appeal.[12]
Result
[10]Senior Courts Act 2016, s 74(2)(a) and (c).
[11]Section 74(2)(b); and Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].
[12]Section 75.
The application for leave to appeal is dismissed.
The applicant must pay the respondent costs of $2,500.
Solicitors:
Te Tari Ture o te Karauna ǀ Crown Law Office, Wellington for Respondent
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