Note Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue

[2009] NZSC 40

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IN THE SUPREME COURT OF NEW ZEALAND

SC 43/2007

[2009] NZSC 40

BETWEENBEN NEVIS FORESTRY VENTURES LIMITED & ORS

Appellants

ANDCOMMISSIONER OF INLAND REVENUE

Respondent

SC 44/2007

BETWEENACCENT MANAGEMENT LIMITED & ORS

Appellants

ANDCOMMISSIONER OF INLAND REVENUE

Respondent

Court:Elias CJ, Tipping, McGrath, Gault and Anderson JJ

Counsel:C T Gudsell for Appellants in SC 44/2007

D J White QC and R J Ellis for Respondent

Judgment:13 May 2009 

JUDGMENT OF THE COURT (PARTIAL RECALL APPLICATION)

[1]       The Commissioner of Inland Revenue has applied for recall of paragraphs [152] – [155] of the reasons for judgment delivered on 19 December 2008.  Specifically the order sought is one “recalling and omitting or amending” those

paragraphs.  The application is brought primarily because in the identified paragraphs reliance was placed on the decision of the Court of Appeal in Commissioner of Inland Revenue v V H Farnsworth Ltd[1] but no reference was made to the more recent decision of the Court of Appeal in Commissioner of Inland Revenue v Zentrum Holdings Limited.[2]  No reference was made to either decision in argument.  The Commissioner points out that Zentrum held that Farnsworth had no application in tax litigation that is preceded by the new disputes process under Part IVA of the Tax Administration Act 1994.

[1] [1984] 1 NZLR 428 (CA).

[2] [2007] 1 NZLR 145 (CA).

[2]       Inadvertently therefore this Court has created uncertainty as to whether Zentrum is a correct statement of the law.  The reasons given in paragraphs [152] – [155] should not be regarded as representing this Court’s view of the correctness or otherwise of either the Farnsworth or the Zentrum cases in the light of Part IVA. 

[3]       We consider this clarification of the position is all that is necessary and that there is no need to order the omission or amendment of paragraphs [152] – [155] of the reasons for judgment.  The problem identified above had no ultimate bearing on the disposition of the matter under consideration in the paragraphs concerned, nor did it have any bearing on the disposition of the appeal itself.  The Commissioner’s application is therefore dismissed.  We make no order for costs.

Solicitors:
Wynyard Wood Solicitors, Auckland for Appellant in SC 44/2007
Crown Law Office, Wellington for Respondent