IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-1196 [2014] NZHC 3040
IN THE MATTER of the Judicature Amendment Act 1972 BETWEEN
GREGORY ALAN PEEBLES and CLIVE RICHARD BRADBURY
First Plaintiffs
BEN NEVIS FORESTRY VENTURES LIMITED (in liquidation) and BRISTOL FORESTRY VENTURE LIMITED (in liquidation)
Second Plaintiffs
AND
ATTORNEY-GENERAL First Defendant
COMMISSIONER OF INLAND REVENUE
Second Defendant
Hearing: On the papers Counsel:
G J Judd QC for Plaintiffs
R L Roff and S J Leslie for Second DefendantJudgment:
02 December 2014
COSTS JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 2 December 2014 at 10 am pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Wynyard Wood, Auckland
Crown Law, Wellington
Counsel: G J Judd QC, Auckland
Copy for: Anderson Creagh Lai Ltd, Auckland
R A Edwards, Auckland
PEEBLES v ATTORNEY-GENERAL [2014] NZHC 3040 [2 December 2014]
[1] In October 2014 I dismissed the Plaintiffs’ application for review of a decision by the Defendant Commissioner (“October judgment”).1 I said that my decision as to costs would follow, as it now does.
[2] As the successful party, the Commissioner is entitled to an award of costs against the Plaintiffs.2 The Commissioner, however, seeks an award of indemnity costs, relying on High Court Rules, r 14.6(4)(a):
...
(4) The court may order a party to pay indemnity costs if—
(a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or
...
[3] The Commissioner submits that the Plaintiffs’ conduct is within r 14.6(4)(a) because they commenced this proceeding for an ulterior motive, misconducted themselves and their case was hopeless from inception.3 The Plaintiffs oppose an award of indemnity costs and contend that their conduct does not fall within r 14.6(4)(a).
[4] After the hearing before me the Court of Appeal issued several judgments in other litigation between participants in the “Trinity scheme”, including the Plaintiffs, and the Commissioner.4 One of these, Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 348, is of particular relevance because the Court discussed awards of indemnity costs. The parties filed written submissions regarding these judgments, which I have taken into account in this
decision.
1 Peebles v Attorney-General [2014] NZHC 2635, (2014) 26 NZTC 21-107.
2 High Court Rules, r 14.2(a).
3 Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [29].
4 Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 348, (2014)
26 NZTC 21-084; Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2014] NZCA 349, (2014) 26 NZTC 21-085; Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 350, (2014) 26 NZTC 21-086; and Accent Management Ltd v Attorney- General [2014] NZCA 351, (2014) 26 NZTC 21-087.
Background
[5] The background to the proceeding is set out in my October judgment.5 What follows is sufficient to give the…
Continue reading Peebles v Attorney-General
Sign in free to access the full text
- AGLC
- Peebles v Attorney-General [2014] NZHC 3040
- Case
- [2014] NZHC 3040
- Decision Date
CaseChat Overview and Summary
Justice Peters found that the Plaintiffs' case was hopeless from the outset and was brought with an ulterior motive to delay the Commissioner. The Plaintiffs were aware of the 2008 Supreme Court judgment, which confirmed the tax liabilities in question, and the provisions of the Tax Administration Act 1994. The Court concluded that it was hopeless for the Plaintiffs to argue that the Commissioner had a duty to consider the assessed amount before commencing recovery proceedings, especially given the Plaintiffs' default in payment. As such, the Plaintiffs' proceeding was vexatious, frivolous, or improperly brought, warranting an award of indemnity costs against them.
Justice Peters awarded indemnity costs to the Commissioner, emphasizing that the Plaintiffs' litigation was brought with an ulterior motive and was without merit. The Second Plaintiffs, now in liquidation, were to be served with a copy of the judgment.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.