Kensington Developments Limited v Cir

[2015] NZSC 77

IN THE SUPREME COURT OF NEW ZEALAND

SC 25/2015
[2015] NZSC 77

BETWEEN	KENSINGTON DEVELOPMENTS LIMITED (IN RECEIVERSHIP) Applicant
AND	COMMISSIONER OF INLAND REVENUE Respondent

Court:	William Young, Glazebrook and Arnold JJ
Counsel:	S R G Judd for Applicant M Deligiannis and K I S Naik-Leong for Respondent
Judgment:	4 June 2015

JUDGMENT OF THE COURT

A           The application for leave to appeal is dismissed.

BThe applicant is to pay the respondent costs of $2,500.

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REASONS

1. In issue is a judgment of the Court of Appeal[1] upholding a decision by Allan J[2] to transfer challenge proceedings filed in the Taxation Review Authority to the High Court made under s 138N of the Tax Administration Act 1994.  That section relevantly provides:

   138N   Proceedings may be transferred to different hearing authorities

   (1)       If a disputant commences a challenge in the High Court,—

   (a)The Commissioner may apply to the High Court to have the challenge transferred to a Taxation Review Authority; or

   (b)The High Court may, of its own motion, transfer the challenge to a Taxation Review Authority.

   (2)If a disputant commences a challenge in a Taxation Review Authority, the Commissioner may apply to the High Court to have the challenge transferred to the High Court.

   …

   [1]Kensington Developments Ltd (in rec) v Commissioner of Inland Revenue [2015] NZCA 60, (2015) 27 NZTC 22-000 [Court of Appeal judgment].

   [2]Commissioner of Inland Revenue v Kensington Developments Ltd [2013] NZHC 3537, (2013) 26 NZTC 21-059 [High Court judgment].

2. Kensington Development Ltd’s grounds for opposing the transfer application were fully considered by both Allan J and the Court of Appeal.  The most meritorious of these (in terms of likely prejudice to Kensington associated with transfer) related to costs.  Kensington is a company controlled by Mr J G Russell.  He is not a lawyer and would be able to appear for Kensington before the Taxation Review Authority but not the High Court.  As well, if the challenge was determined by the Taxation Review Authority, Kensington, if unsuccessful, would not be liable for costs.  These considerations, however, were recognised and allowed for by both Allan J[3] and the Court of Appeal.[4]

   [3]High Court judgment, above n 2, at [53]–[58].

   [4]Court of Appeal judgment, above n 1, at [10] and [33].

3. The point at issue is in substance of an interlocutory character[5] and the case has now been fully considered twice.  The proposed appeal does not raise a point of general or public importance such as to warrant a grant of leave to appeal and we see no appearance of a miscarriage of justice.

   [5]We note that the applicant has indicated that the challenge will be abandoned if the proceedings are transferred from the Taxation Review Authority to the High Court. The underlying issue, however, remains interlocutory in character.

Solicitors:
Ladbrook Law Limited, Auckland for Applicant
Crown Law Office, Wellington for Respondent