McGuire v Commissioner of Inland Revenue

[2025] NZCA 167

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA304/2024
 [2025] NZCA 167

BETWEEN	JEREMY JAMES MCGUIRE Appellant
AND	COMMISSIONER OF INLAND REVENUE First Respondent
PALMERSTON NORTH DISTRICT COURT Second Respondent

Court:	Thomas and Woolford JJ
Counsel:	R J Latton for Appellant K I S Naik‑Leong for First Respondent A Bloomfield and R E R Gavey for Second Respondent
Judgment: (On the papers)	14 May 2025 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 is granted.

BThe appellant must pay costs to the first respondent for a standard application on a band A basis, together with usual disbursements.

REASONS OF THE COURT

(Given by Woolford J)

1. Mr Jeremy McGuire is appealing against a decision of Johnstone J in the High Court striking out his claim.[1]  Mr McGuire had sought judicial review of a decision of Judge Edwards in the District Court striking out his defence to a claim by the Commissioner of Inland Revenue for $39,763.48 in unpaid tax (the District Court tax judgment).[2]

   [1]McGuire v Commissioner of Inland Revenue [2024] NZHC 883 [High Court strike‑out judgment].

   [2]Commissioner of Inland Revenue v McGuire [2022] NZDC 12179.

2. Mr McGuire was advised on 9 September 2024, that the appeal was (treated as) abandoned pursuant to r 43(1) of the Court of Appeal (Civil) Rules 2005 because the Court had not received an application for a fixture.  Mr McGuire now applies pursuant to r 43(2) for an extension of time to apply for a fixture and to file the hyperlinked electronic copy of the case on appeal.

Background and submissions

1. Rule 43(1) provides that an appeal is to be treated as abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within three months after the appeal is brought.  Mr McGuire filed his appeal on 16 May 2024.  The Registry advised him that he must apply for the allocation of hearing date and file the case on appeal by 16 August 2024.  On 16 July 2024, the Registry emailed a reminder to Mr McGuire that if he did not apply for a fixture and file the case on appeal by 16 August 2024, the appeal would automatically be deemed abandoned under r 43(1).  Mr McGuire was subsequently granted an extension of five working days.  The last day for compliance with r 43(1) was then 23 August 2024.

2. On 22 August 2024, Mr McGuire couriered four copies of the case on appeal to the Registry.  On 23 August 2024, the Registry emailed Mr McGuire provisionally confirming receipt of the case on appeal.  The Registry advised Mr McGuire that only one physical copy was required, and that it would await the electronic copy to be filed as soon as possible.  The Registry also advised Mr McGuire that the hard copies required certain amendments and that the application for a hearing date was still due by the end of the day and, if the application for a hearing date was not filed, the appeal would be (treated as) abandoned.

3. Mr McGuire says he had prepared covering letters for the case on appeal which he forgot to take with him when he collected the case on appeal from the printer.  He says he was in a panic because of the filing deadline the next day.  The covering letter to both the Registry and the first respondent said:  “Please contact my counsel Mr Latton over scheduling a hearing etc.”  Mr McGuire forwarded the covering letters by email on the same day, after having couriered the case on appeal to the Registry and the first respondent.  Mr McGuire acknowledges that it was inadvertence or an oversight on his part that he did not formally apply for a hearing. 

4. The first respondent submits that the delay is not adequately explained.  As to Mr McGuire’s conduct, the current case on appeal is not compliant with the Court of Appeal (Civil) Rules and the appeal is another attempt to delay the first respondent obtaining an order adjudicating Mr McGuire bankrupt.  Mr McGuire is continuing to commence further proceedings to obstruct the first respondent, despite having four outstanding costs orders against him which remain unpaid.  The first respondent further submits that it has been prejudiced by being deprived of the fruits of its litigation.  It is over two years since the District Court tax judgment was issued and the proposed appeal constitutes a further attempt to collaterally attack that judgment.

Decision

1. As to the factors which are likely to require consideration in an application to extend time, in terms of Almond v Read:[3]

   (a)The length of the delay is insubstantial.

   (b)Mr McGuire has provided an adequate explanation for the delay.  He acknowledges it was due to an oversight on his part.

   (c)Although the first respondent submits that Mr McGuire has a history of non‑co‑operation and delay, his conduct in the present appeal is not so egregious as to deny him a hearing.

   (d)A short delay will not cause meaningful prejudice to the first respondent.

   (e)The issues raised by the proposed appeal are not significant.  There is no public interest in the appeal.

   [3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]; and Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].

2. The merits of the appeal will generally not be relevant where the delay is insignificant.[4]  Thus, while we tend to agree with Johnstone J’s characterisation of Mr McGuire’s case as “untenable” and “hopeless”,[5] the other factors tip the balance in favour of granting an extension of time.[6]

Costs

[4]Almond v Read, above n 3, at [39].

[5]High Court strike‑out judgment, above n 1, at [41] and [47].

[6]It remains open to the Commissioner to file an application for strike out under r 44A of the Court of Appeal (Civil) Rules 2005 if it believes that grounds for strike out are made out. 

1. As the need for an application for an extension of time arises from a default on the part of Mr McGuire, the Commissioner is entitled to costs in respect of the application unless its opposition to the application was unreasonable in the circumstances.[7]  The Commissioner has been unsuccessful but its opposition to the application was not unreasonable, and it is therefore entitled to an award of costs. 

Result

[7]Court of Appeal (Civil) Rules, r 53G(2).  Rule 53GA(1) states that the same principles applying to costs on an application for leave to appeal, as well as r 53G, apply to costs on an interlocutory application.

1. The application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 is granted.

2. The appellant must pay costs to the first respondent for a standard application on a band A basis, together with usual disbursements.

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for First and Second Respondents