Charter Holdings Limited v Commissioner of Inland Revenue [2015] NZHC 2527 (14 October 2015)

Last Updated: 30 November 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003013 [2015] NZHC 2527

BETWEEN	CHARTER HOLDINGS LIMITED Applicant
AND	THE COMMISSIONER OF INLAND REVENUE Respondent

Hearing:	(On the papers)
Counsel:	John Land and Sam Carey for the Applicant Pauline Courtney and Polly Higbee for the Respondent
Judgment:	14 October 2015

JUDGMENT OF MOORE J [Recall]

This judgment was delivered by me on 14 October 2015 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

CHARTER HOLDINGS LIMITED v THE COMMISSIONER OF INLAND REVENUE [2015] NZHC 2527 [14 October 2015]

[1] On 8 October 2015, I received an urgent application from Charter Holdings Ltd (“CHL”) seeking interim relief to prevent the Commissioner of Inland Revenue (“the Commissioner”) from placing it in liquidation before its appeal to the Court of Appeal had been heard. The same day I issued a judgment allowing the application and ordering the Commissioner not to continue liquidation proceedings against CHL

until the determination of CHL’s appeal.¹

[2] Because of the urgency of the application, I inadvertently overlooked the fact that this was an on notice application. As a result, the Commissioner is entitled to be heard on the application, and has been deprived of this opportunity. For this reason, the Commissioner has applied for recall of my earlier judgment.

[3] Rule 11.9 of the High Court Rules provides that a judge may recall a judgment at any time before it is sealed. The situations in which recall is appropriate are well known and are set out in the decision of Wild CJ in Horowhenua County v Nash (No 2):²

“Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.”

[4] I am satisfied that this case falls within the third category. The Commissioner is entitled to be heard on the application and judgment should not have been entered without the Commissioner being given an opportunity to exercise that right. The judgment will be recalled.

[5] However, I am also satisfied that the orders made in that judgment are necessary to preserve CHL’s position until the present application can be heard. I therefore intend to continue those orders on an interim basis until the determination

_{of this application.}

¹ _{Charter Holdings Ltd v Commissioner of Inland Revenue [2015] NZHC 2470.}

² Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, approved of in Saxmere Co

Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] NZLR 76.

[6] I therefore recall my earlier judgment and in substitution order the Commissioner is not to continue the liquidation proceedings until the present application has been determined. I direct that the liquidation proceedings are to be stayed until judgment is issued on this application. I direct that the Commissioner is to file a notice of opposition and submissions by 16 October 2015 and CHL is to file any reply before 23 October 2015.

[7] I intend to deal with this application on the papers, but if either party wishes to be heard on the application then I direct the registrar to set the matter down for an

_{urgent hearing before me.}

Moore J

Solicitors:

Mr Land, Auckland

Crown Law, Wellington