Russell v Commissioner of Inland Revenue

[2014] NZHC 2956

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-001281 [2014] NZHC 2956

UNDER

the Judicature Amendment Act 1972

BETWEEN

JOHN GEORGE RUSSELL Applicant

AND

THE COMMISSIONER OF INLAND REVENUE

Respondent

Hearing:	25 November 2014
Appearances:	SRG Judd for Applicant P Courtney for Respondent
Judgment:	25 November 2014

(ORAL) JUDGMENT (NO. 2) OF ANDREWS J [Respondent's application for recall]

RUSSELL v COMMISSIONER OF INLAND REVENUE [2014] NZHC 2956 [25 November 2014]

[1]      In my judgment delivered on 26 August 2014 I granted the interim relief sought by the applicant, namely:1

… I have concluded that an interim order should be made prohibiting the Commissioner    from    commencing    bankruptcy    proceedings    against Mr Russell, pending further order of the Court.

[2]      The Commissioner has filed a notice of appeal against my judgment.

[3]      On 3 November 2014, the Commissioner filed an application seeking recall of my judgment, to amend the form of relief granted.  In a memorandum in support of the application, Mrs Courtney noted that my attention had not been drawn to s 8(2) of the Judicature Amendment Act 1972, and relevant consequential provisions in the Crown Proceedings Act 1950.  Briefly summarised, Mrs Courtney submitted that the appropriate order to make against the Commissioner was a declaration that the Commissioner ought not to commence bankruptcy proceedings.  She submitted that the Court did not have jurisdiction to make an “interim order”.

[4]      I directed that the application be served on counsel for Mr Russell.   On

24 November 2014,  Mr  Judd  filed a memorandum  opposing the application  for recall.  He submitted that it is by no means certain whether the appropriate form in which the Commissioner is to be restrained from taking certain actions is by way of a declaration or an order.  He referred to cases where an order had been made.

[5]      This issue was not argued before me at the hearing, I do not consider it appropriate to deal with it now.   Accordingly, I decline the application for recall. The judgment is to be sealed as delivered.

[6]      However, for the assistance of the parties, and any Court considering the judgment subsequently, I record that, whether the relief was in the form of a declaration or an order, it would have been to the same effect.   That is, the Commissioner  is  restrained  from  commencing  bankruptcy  proceedings  against

Mr Russell, pending further order of the Court.

Andrews  J

1      Russell v Commissioner of Inland Revenue [2014] NZHC 2034 at [46].