Ron West Motors (Otahuhu) Ltd v Commissioner of Inland Revenue

[2007] NZCA 338

IN THE COURT OF APPEAL OF NEW ZEALAND

CA113/06
[2007] NZCA 338

BETWEEN  RON WEST MOTORS (OTAHUHU)

LIMITED Appellant

AND  THE COMMISSIONER OF INLAND

REVENUE Respondent

Court:  William Young P, Robertson and Wilson JJ

Counsel:  S R G Judd for Appellant

C K Wood for Respondent

Judgment (on the papers)      8 August 2007 at 11 am

JUDGMENT OF THE COURT

The appellant is ordered to pay to the respondent costs of $1,500 and usual disbursements.

REASONS OF THE COURT

(Given by Wilson J)

1. The appellant sought to appeal against a decision of an Associate Judge in Chambers.

2. The proper way to challenge that decision would have been to apply to the High Court for a review of the decision by a Judge.

RON WEST MOTORS (OTAHUHU) LIMITED V THE COMMISSIONER OF INLAND REVENUE CA CA113/06 [8 August 2007]

[3] The respondent attempted to persuade the appellant to follow that procedure. He was unsuccessful, and therefore filed in this Court a Memorandum raising the question of jurisdiction.

[4] Following a telephone conference, the appellant accepted that this Court had no jurisdiction and abandoned the appeal.

[5] The respondent now seeks an order that the sum of $4,300 fixed and paid as security for costs be paid to him in full.

[6] The appellant opposes that application and submits that there should be no costs awarded because there was no necessity for the respondent to have incurred any costs.

[7] The respondent is in our view entitled to a reasonable contribution towards his costs. The appeal should not have been filed when this Court had no jurisdiction to consider it, and the respondent was therefore justified in raising the question of jurisdiction as a preliminary issue.

[8] We think that the appropriate quantum of costs is $1,500 and usual disbursements.

1. We make an order accordingly.

Solicitors:

Quay Law (Auckland) for Appellant

Crown Solicitor (Auckland) for Respondent