Henare v Commissioner of Inland Revenue
[2025] NZCA 170
•19 May 2025 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA635/2024 |
| BETWEEN | STEPHEN JAMES HENARE |
| AND | COMMISSIONER OF INLAND REVENUE |
| Court: | Cooke and Hinton JJ |
Counsel: | Applicant in person |
Judgment: | 19 May 2025 at 10.30 am |
JUDGMENT OF THE COURT
AThe application for leave to bring a second appeal is declined.
BThe application for an order requiring provision of a transcript is declined.
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REASONS OF THE COURT
(Given by Cooke J)
On 28 November 2023, the District Court granted the Commissioner of Inland Revenue (the Commissioner) summary judgment against Mr Henare for the amount of $902,927.33 and interest.[1] On 23 July 2024, the High Court dismissed Mr Henare’s appeal.[2] Mr Henare now seeks leave to pursue a second appeal to this Court pursuant to s 60(2) of the Senior Courts Act 2016. He also seeks provision of a transcript of the High Court hearing.
[1]Commissioner of Inland Revenue v Henare [2023] NZDC 26635.
[2]Henare v Commissioner of Inland Revenue [2024] NZHC 2012.
The application is to be determined on the papers and both parties have filed submissions. Mr Henare is self-represented. As a consequence of a minute issued by the Court on 7 April 2025, further written submissions have been received.
Background
Mr Henare pleaded guilty to five representative charges of theft and one charge of attempting to pervert the course of justice, and was sentenced by the High Court to five years and two months’ imprisonment.[3] Mr Henare had been a trustee of a Māori land trust with a number of beneficial owners, and the charges related to trust funds he had misappropriated.
[3]R v Henare [2019] NZHC 2126.
The Commissioner subsequently assessed Mr Henare’s taxation liabilities associated with the stolen funds, as well as some student loan liabilities. The Commissioner then 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.
When the application was heard in the District Court, Mr Henare was self‑represented but assisted by a financial mentor from the Salvation Army. Mr Henare applied for the summary judgment application to be adjourned for six months so that he could prepare a defence to the claim. He also argued that his release conditions following his release from prison prevented him engaging in the assessment dispute processes.
The District Court entered summary judgment, finding that Mr Henare had not engaged in the disputes procedure under pts 4A and 8A of the Tax Administration Act within the time frames specified, and that s 109 of the Act applied such that Mr Henare could not have a defence to the Commissioner’s claim.[4]
[4]Commissioner of Inland Revenue v Henare, above n 1, at [9]–[14] citing Keighley v Commissioner of Inland Revenue (No 3) (2004) 21 NZTC 18,461 (HC).
The High Court upheld the District Court on appeal, including on the basis that by reason of s 109, the Commissioner was entitled to judgment.[5] Jagose J held that nothing would have been served by requiring the Commissioner’s claim against Mr Henare to continue to trial with the same result.[6] Mr Henare now seeks leave to appeal to this Court. He also seeks provision of a transcript of the High Court hearing.
Assessment
[5]Henare v Commissioner of Inland Revenue, above n 2.
[6]At [17].
Section 60(1) of the Senior Courts Act provides the decision of the High Court on appeal is final unless leave is granted to appeal to the Court of Appeal. The proposed appeal must raise some question of law or fact capable of bona fide and serious argument, in a case involving some interest of sufficient importance to outweigh the cost and delay of a further appeal.[7] In the High Court, Jagose J declined to grant leave.[8] When leave is so declined by the High Court it may be granted by the Court of Appeal under s 60(2).
[7]Birchler v Homebuild Homes Ltd [2024] NZCA 414 at [32]; and Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
[8]Henare v Commissioner of Inland Revenue [2024] NZHC 2530.
Mr Henare has advanced wide-ranging arguments in his submissions in support of leave. We consider that there is only one matter that could potentially reach the threshold for the grant of leave — that Mr Henare has been deprived of the ability to have the claimed debt assessed on its merits, and consequently an adjournment should have been granted in the District Court to allow that to occur or, alternatively, the District Court should have exercised its discretion to decline summary judgment. For a series of related reasons, however, we are not satisfied that leave should be granted to address that argument.
First, as both the lower courts have found, Mr Henare now has very limited avenues to challenge the Commissioner’s assessment. By a minute dated 7 April 2025 we asked counsel for the Commissioner whether any consideration had been given to the potential application of s 138D of the Tax Administration Act, which appeared to allow objection to an assessment after the normal response period in exceptional circumstances. That provision has been referred to in other cases in relation to potential challenges to assessments out of time.[9] In response, the Commissioner advised that, given that Mr Henare did not engage with the disputes procedure at all, he could not commence a challenge under s 138D. Without finally determining that this is correct, we accept that Mr Henare’s failure to engage in the established procedures for disputing the Commissioner’s assessment means that his ability to do so now is highly constrained, and that the District Court and High Court correctly found that s 109 applies.
[9]Muir v Commissioner of Inland Revenue [2018] NZSC 81 at [10]; Muir v Commissioner of Inland Revenue [2018] NZCA 456 at [26]; Goodricke v Commissioner of Inland Revenue [2024] NZHC 3639 at [30]; and Mawhinney v Commissioner of Inland Revenue [2018] NZHC 2604 at [33] and [48].
Secondly, we do not accept that there is any foundation for Mr Henare’s argument that his release conditions prevented him from disputing the assessments. On the face of those conditions they do not do so, and there is no information before the Court to suggest that Mr Henare took any steps to check whether they did or not — for example by raising his ability to do so with his Probation Officer. This is not a case where Mr Henare has been deprived of a right to dispute the assessments. Rather it is a case where he has not exercised his right to do so in the prescribed manner.
Thirdly, at no stage has Mr Henare sufficiently identified what the basis of the challenge to the Commissioner’s assessments would be. He has contended that he has been deprived of a fair procedure, without adequately articulating any potential error with the assessments in the District Court, or in the High Court, or before us. If a person in Mr Henare’s position is to invite a court not to enter summary judgment because of a claim that the debt is disputed, then there needs to be some clear information put before that court identifying what that dispute is. Whilst Mr Henare has made some points about his liabilities, he has not articulated an arguable defence.
Ultimately, we are satisfied that Mr Henare’s proposed appeal does not raise a question of law or fact capable of bona fide and serious argument, as required before leave can be granted.
In relation to the application for a transcript of the hearing in the High Court, this is also declined as there is no compelling reason to order it, especially as leave to appeal has been declined.[10]
Result
[10]See Tomar v Khatri [2022] NZCA 61; aff’d [2022] NZCA 119.
The application for leave to bring a second appeal is declined.
The application for an order requiring provision of a transcript is declined.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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