TOKIKAPU TE WHATA and PEHIMANA TE WHATA s AND CRAIG SANSON and DAVID BRIDGEMAN as liquidators of Shearing Services Kamupene Limited (In liquidation) COMMISSIONER OF INLAND REVENUE

[2024] NZHC 2684

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2915

[2024] NZHC 2684

BETWEEN

TOKIKAPU TE WHATA and PEHIMANA TE WHATA

Applicants

AND

CRAIG SANSON and DAVID

BRIDGEMAN as liquidators of Shearing Services Kamupene Limited (In liquidation) First Respondent

COMMISSIONER OF INLAND REVENUE

Second Respondent

Hearing:

11 September 2024

Appearances:

Applicants in person

RMG Hindriksen for First Respondent
No appearance by or on behalf of Second Respondent

Judgment:

17 September 2024

JUDGMENT OF BLANCHARD J

This judgment was delivered by me on Tuesday, 17 September 2024 at 11:30 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

Solicitors:           Meredith Connell, Auckland

Crown Law, Wellington

Copy to:            Applicants

TE WHATA v SANSON [2024] NZHC 2684 [17 September 2024]

[1]                 The first respondents apply to strike out the claims against them in these proceedings. They seek judgment against the applicants and scale costs with an uplift of 50 per cent.

The proceedings

[2]                 In the proceedings the applicants seek to judicially review 14 decisions made by various decision-makers over the last 11 years.

[3]                 The applicants advised that they are bringing the proceedings on behalf of hapū they are members of or associated with.

[4]                 The  proceedings  relate  to  land  that  is  or  was  previously  owned  by   two companies associated with the applicants, Shearing Services Kamupene Ltd (SSKL) and Tarahau Farming Ltd (TFL). SSKL owned land in Southland. TFL owns land in Northland.

[5]                 SSKL owed a debt to Inland Revenue. The company was put into liquidation by the second respondent in 2016. The first respondents were appointed as liquidators. The second named first respondent, Mr Bridgeman, was subsequently replaced as liquidator by Malcolm Hollis.

[6]The liquidators sought to recover assets to pay SSKL’s debts.

[7]                 SSKL had land in Southland that was mortgaged to ANZ Bank Ltd. SSKL sold the land, and some of the proceeds were used to repay SSKL’s debt to the bank.

[8]                 ANZ also had mortgages over TFL’s properties and there were cross-guarantees between the two companies. When SSKL’s properties were sold, some of the proceeds were paid to the bank under the cross-guarantee. This reduced TFL’s debt to the bank by around $180,000.

[9]                 SSKL sought indemnification from TFL in respect of the around $180,000 that it paid to ANZ under the guarantee. On 22 March 2024, Judge P R Rzepecky in the

District Court granted SSKL summary judgment against TFL.1 This is one of the decisions that the applicants are seeking to judicially review.

The decisions subject to judicial review

[10]              The decisions that the applicants seek to judicially review are listed in an amended statement of claim dated 15 May 2024.

[11]              The first two decisions  are decisions of “Te  Kooti Rangatira Ateha” dated  18 October 2022, and “Te Kooti Marae O Ngatimoerewa” dated 28 October 2022. At the hearing, the applicants said that these are courts that have been set up by Northland hapū in accordance with customary rights. During discussion at the hearing, it became apparent that the applicants do not wish to challenge these decisions. Rather they seek to rely on them. For that reason, after discussion, the applicants advised they no longer wish to judicially review the decisions.

[12]              The remaining 12 decisions are decisions of the High Court,2 Court of Appeal,3 Māori Land Court,4 Taxation Review Authority (TRA),5 and the District Court.6 The applicants confirmed that they wish to continue to seek judicial review of these decisions.

The applicants’ position

[13]              The applicants say that the courts and the TRA did not have jurisdiction to make the 12 decisions because they relate in some way to the land that is or was previously owned by SSKL and TFL over which they and the hapū they represent have customary rights. They say that the decisions breach the Treaty of Waitangi.

1      Shearing Services Kamupene Ltd (in liq) v Tarahau Farming Ltd [2024] NZDC 5858.

2      Shearing Services Kamupene Ltd v Commissioner of Inland Revenue [2014] NZHC 3223; Commissioner of Inland Revenue v Shearing Services Kamupene Ltd [2016] NZHC 1379, (2016) 27 NZTC 22-057; Commissioner of Inland Revenue v Tarahau Farming Ltd [2019] NZHC 1783; Shearing Services Kamupene Ltd (in liq) v Tarahau Farming Ltd [2019] NZHC 1280; Shearing Services Kamupene Ltd (in liq) v Tarahau Farming Ltd [2020] NZHC 3352; Shearing Services Kamupene Ltd (in liq) v Tarahau Farming Ltd [2021] NZHC 2376; and Sanson v Te Whata [2024] NZHC 123.

3      Tarahau Farming Ltd v Shearing Services Kamupene Ltd (in liq) [2019] NZCA 601.

4      Ruwhiu v Commissioner of Inland Revenue (2016) 143 Taitokerau MB 159 (143 TTK 159).

5      Case 9/2012 [2012] NZTRA 9, (2012) 25 NZTC 1-021; and Case 7/2013 [2013] NZTRA 7, (2013)

26 NZTC 2-006.

6      Shearing Services Kamupene Ltd (in liq) v Tarahau Farming Ltd, above n 1.

Decision

[14]              There are a number of difficulties with the applicants’ claim. A fundamental one is that judicial review is the wrong avenue to challenge the decisions. Judicial review is not available to challenge decisions of the senior courts. As Cooper P stated in Power v Court of Appeal:7

The mechanism by which decisions of the High Court and Court of Appeal are able to be challenged is the exercise of statutory rights of appeal, subject to leave requirements where that is necessary.

[15]              It is theoretically possible to judicially review decisions of the Māori Land Court, TRA, and the District Court. However, the decisions in question are substantive ones and appeal rights were available in relation to them.8 While the availability of an appeal on the merits does not necessarily exclude an administrative law remedy in appropriate cases, this is not such a case.9 The applicants’ claims were, or should have been, dealt with by way of appeal. Resort cannot be had to judicial review.10

[16]              For these reasons, the amended statement of claim discloses no reasonably arguable cause of action.11

Costs

[17]              The first respondents’ schedule seeks costs for a category 2 proceeding with time allocation B sought in relation to each step taken. They seek a 50 per cent uplift and to recover the filing fee on the application of $434.78. The total sought is

$16,925.78.

[18]              For the reasons I have explained, the applicants’ claims had no prospect of success. A 50 per cent uplift is therefore appropriate.

7      Power v Court of Appeal [2023] NZCA 25 at [4].

8      Highgate Business Park Ltd v Environment Court [2014] NZHC 1692, [2014] NZAR 1102 at [54]–[55] quoting Murray Darnill Ltd v Taxation Review Authority HC Invercargill CP77/91, 17 March 1994 at 6.

9      RL v Chief Executive of Ministry of Social Development [2009] NZCA 596 at [20]–[21].

10     Highgate Business Park Ltd v Environment Court, above n 8, at [54].

11     High Court Rules 2016, r 15.1.

[19]              The only issue with the applicants’ costs schedule is that 0.5 of a day has been claimed for attendance at the hearing and, as it transpired, it only took a quarter of a day. Accordingly, the costs amount should reduce to $16,029.53. Otherwise, the amounts sought are properly claimable.

Result

[20]              The application for strike out is granted. I enter judgment in favour of the first respondents in relation to the applicants’ claims.

[21]The applicants are ordered to pay costs to the first respondents of $16,029.53.

Blanchard J