Dunphy v Commissioner of Inland Revenue HC Wellington CIV-2009-485-000733 [2011] NZHC 693 (11 July 2011)

Last Updated: 22 July 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV-2009-485-000733}

	UNDER	Part I of the Judicature Amendment Act 1972
	BETWEEN	MALCOLM FRANCIS DUNPHY First Applicant
	AND	DAVID JOHN GRIEVE Second Applicant
	AND	RICHARD SCOTT GROCOTT Third Applicant
	AND	ROBERT CHARLES MAXWELL Fourth Applicant
	AND	FRANCIS JAMES H OXLEY Fifth Applicant
	AND	DAVID MILLS SIMPSON Sixth Applicant
	AND	JOHN NEVILLE SIMPSON Seventh Applicant
	AND	MARY SCHUMACHER Eighth Applicant
	AND	COMMISSIONER OF INLAND REVENUE Respondent
Hearing:	Dealt with on the papers
Judgment:	11 July 2011

_{JUDGMENT OF CHISHOLM J}

DUNPHY V COMMISSIONER OF INLAND REVENUE HC WN CIV-2009-485-000733 11 July 2011

[1] On 28 April 2011 the applications for judicial review by the first, seventh and eighth applicants were granted and the Commissioner was directed to reconsider their applications for tax refunds on the strength of Peterson v Commissioner of Inland Revenue.[1] Given that judgment it was anticipated that the claims for refunds by other applicants would be resolved between the various applicants and the Commissioner. Leave was reserved to any party to apply further “should clarification of any of these orders be required”.[2]

[2] In a memorandum dated 18 May 2011, Mr Hartley, counsel for the applicants, advises that except for the claim of the fourth applicant the claims of all the other applicants have now been resolved. However, in the case of the fourth applicant, Robert Maxwell, two orders are sought: first an order amending the statement of claim; secondly, if the amendment to the statement of claim is permitted, an order directing the Commissioner to reconsider the fourth applicant’s application in light of the amendment to the statement of claim.

[3] These applications are made on the basis that in the amended statement of claim (the current pleading) Appendix 4 pleads that Robert Maxwell had invested the sum of $20,000 in the film Utu whereas the actual amount was $40,000. It is noted that the correct amount was included in the initial statement of claim. The basis of the claim for the additional $20,000 is outlined in the memorandum.

[4] In his memorandum of 27 May 2011 Mr Ebersohn, counsel for the Commissioner, strongly opposes the application. Amongst other things he relies on a settlement deed dated 15 December 2010 which purports to settle all matters between Mr Maxwell and the Commissioner in relation to this proceeding. Mr Ebersohn also raises various other grounds of opposition, including whether the present application comes within the leave to apply further reserved in the earlier judgment.

[5] Given the time that has passed since Mr Ebersohn’s memorandum was filed, I

_{assume that the applicant does not intend to file any further documentation.}

[6] Assuming for the moment that there is jurisdiction to grant leave for the fourth applicant’s pleading to be amended at this late stage, I am not prepared to grant leave. The proposed amendment is not within the scope of the “clarification” leave reserved to the parties in the substantive judgment. More importantly, the parties appear to have settled all matters in relation to this proceeding.

[7] The application is dismissed. There will be an order for costs on the 2B scale against the fourth applicant in favour of the respondent.

Solicitors:

Peterson Law Ltd P O Box 342, Wellington

Crown Law office, P O Box 2858, Wellington

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[1] _{Peterson v Commissioner of Inland Revenue [2006] 3 NZLR 433 PC}

[2] At [113]