W P Withey Limited v Commissioner of Inland Revenue

[2004] NZCA 150

IN THE COURT OF APPEAL OF NEW ZEALAND

CA88/97

BETWEENW P WITHEY LIMITED

Appellant

ANDCOMMISSIONER OF INLAND REVENUE

Respondent

Hearing:19 July 2004

Coram:Anderson P
Glazebrook J
Hammond J

Appearances:  No appearance for Appellant

N Malarao for Respondent

Judgment:19 July 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This is an application by the respondent to strike out an appeal for want of prosecution.  The appeal was filed in 1997.  It was an appeal against an interlocutory order of the High Court, made on 3 March 1997, directing that Case Stated appeals of the appellant and assorted shareholders be heard in the High Court.  Those cases were heard substantively later in 1997.  No steps were taken to bring the appeal on for hearing.  There would in any event seem to be no efficacy in an interlocutory appeal when the substantive proceedings have been heard.  The appellant’s delay is plainly gross and inordinate. 

[2]       We note that learning of the impending hearing of the respondent’s application Mr J G Russell, on behalf of the appellant, sought an adjournment which the President refused to grant.  The delay was so manifestly unacceptable and the appeal so manifestly wanting in merit that any adjournment would simply delay the inevitable. 

[3]       The appeal is accordingly struck out for want of prosecution with costs of $1,500 and disbursements to the respondent.

Solicitors:

Crown Solicitors, Auckland for Respondent