T J Power Ltd v Commissioner of Inland Revenue

[2006] NZCA 223

IN THE COURT OF APPEAL OF NEW ZEALAND

CA173/05

BETWEENT J POWER LIMITED

Appellant

ANDTHE COMMISSIONER OF INLAND REVENUE

Respondent

Hearing:21 August 2006

Court:Chambers, Randerson and John Hansen JJ

Counsel:No appearance for Appellant

M Deligiannis and N H Malarao for Respondent

Judgment:21 August 2006 

Reasons:21 August 2006

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BThe appellant must pay to the respondent costs of $3,500, plus usual disbursements.  We certify for one counsel.

REASONS OF THE COURT

(Given by Chambers J)

[1]       T J Power Limited, the appellant, was due to file its submissions by no later than 24 July 2006: Court of Appeal (Civil) Rules 2005, r 41 (3).  It did not file them.  I directed that there be a telephone conference with counsel.  Mr Warburton, counsel for T J Power, sought an extension of time.  He indicated the date by which he could complete the submissions.  That date came and went.  Mr Warburton then sought an adjournment of the appeal.  I heard counsel, but declined the application for an adjournment.  I told Mr Warburton that T J Power should get its submissions in as soon as possible.  Whether any such submissions would be read would be a matter for the panel allocated for the appeal hearing.

[2]       T J Power did not file any submissions.  This morning, when the appeal was called, there was no appearance on behalf of T J Power. 

[3]       Ms Deligiannis, for the Commissioner of Inland Revenue, the respondent, sought to have the appeal dismissed for want of prosecution.  We made such an order.  Our jurisdiction to make such an order stems from rr 5(1) and (4) and 48(2) and (4), incorporating r 485 of the High Court Rules (with necessary modifications).

[4]       Ms Deligiannis also sought costs.  The sum awarded reflects the fact that Ms Deligiannis prepared full submissions in answer to the grounds stated in T J Power’s notice of appeal.  She also took part in two case management conferences, both of which were necessitated by defaults on T J Power’s part.

Solicitors:
Warburton, Auckland, for Appellant
Crown Law Office, Wellington