CIR V CHESTERFIELDS PRESCHOOLS LIMITED & ORS CA800/2008 [2013] NZCA 311

CIR V CHESTERFIELDS PRESCHOOLS LIMITED & ORS CA800/2008 [2013] NZCA 311 [17 July 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA800/2008[2013] NZCA 311BETWEEN COMMISSIONER OF INLANDREVENUEAppellantAND CHESTERFIELDS PRESCHOOLSLIMITEDFirst RespondentAND DAVID JOHN HAMPTONSecond RespondentAND CHESTERFIELDS PARTNERSHIPThird RespondentAND CHESTERFIELDS PRESCHOOLSPARTNERSHIPFourth RespondentAND ANOLBE ENTERPRISES LIMITEDFifth RespondentCounsel: S Kinsler for AppellantD J Hampton for the RespondentsJudgment:(On the papers)17 July 2013 at 3 pmJUDGMENT OF ELLEN FRANCE J(Review of Acting Registrar's decision relating to disbursements)The application to review the Acting Registrar's decision is dismissed.____________________________________________________________________REASONS[1] In a judgment delivered on 31 August 2010 this Court allowed, in part, a judicial review appeal by the Commissioner of Inland Revenue.1 The appeal wasotherwise dismissed. The Court ordered the Commissioner to pay "usual disbursements" in relation to the hearing in this Court to the respondent taxpayers. A judgment was subsequently sealed (the Acting Registrar's decision).2 In the sealed version, the sum accorded for disbursements for the judicial review appeal is $0.[2] Mr Hampton sought a review of the Acting Registrar's decision under r 7 of the Court of Appeal (Civil) Rules 2005 on the basis that the respondents should have recovered various disbursements.3 Recovery is sought in relation to two matters. First, the respondents claim fees for services and work done by the second respondent in his capacity as director of the first respondent. Secondly, recompense is sought for photocopying and binding and related expenses. The Commissioner'sposition is that she will accept any claim for reasonable disbursements but does not accept those for which recompense is now sought.[3] It is not clear to me that there is a basis for a review of the Acting Registrar'sdecision given the judgment has been sealed.4 Assuming, without deciding, that there is jurisdiction, the application for review is dismissed on the following grounds.[4] First, the orders were provided to Mr Hampton in draft for comment prior to sealing. On the information I have, Mr Hampton did not advance any claim for reimbursement of these costs. It appears there were difficulties for him in responding due to the Christchurch earthquake. However, the Acting Registrar extended the time for a response. It appears that nothing further was provided and so nothing more was required of the Registrar. In these circumstances, where the1 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500; see also subsequent reissue on 16 September 2010.2 A number of appeals were consolidated and the sealed orders related to various appeals.3 The application for review was well out of time but objection was not taken on that basis and I extend the time under r 5(2) of the Court of Appeal (Civil) Rules 2005.4 This Court is functus officio.Acting Registrar has considered the relevant information presented, there is nothing on review to correct.[5] Secondly, the respondents still have not provided a proper evidential basis for the claims now made. Mr Hampton refers to problems caused by destruction of paperwork following the earthquake. That does not explain the absence of evidence that the costs claimed were met by the respondents. What is before me is an invoiceaddressed to the Commissioner relating to "Chesterfields Preschools Ltd: for tax accounting services".[6] Thirdly, the bulk of the services for which recompense is sought are not disbursements as that term is defined5 but rather a claim for Mr Hampton's timespent preparing for the appeal. That is apparent on the face of the invoice which in this respect records as follows:Specialist Forensic Tax Services(Hourly charge out rate: $400.00 plus GST)Reference: Appeal of High Court judicial review judgment brought by the Commissioner of Inland Revenue;Total combined sum claimed by Inland Revenue including penalties: approx $6.5mPeriod under analysis: 1990 to 2009To: Tax accounting services in relation to review ofrespondents' tax matters: 1990 to 200980 hours $32,000.00To: Review and analysis of the appellant's taxaccounting evidence and documentation:1990 to 200980 hours $32,000.00To: Preparation of tax accounting documentationrelated to the appeal proceedings30 hours $12,000.00To: General Secretarial Services in relation to theabove Tax Services(20 hours at $25.00 p.h. plus GST) $500.005 See r 14.12(1) of the High Court Rules which I apply by analogy.To: Photocopy $500.00Sub total $77,000.00[7] Mr Hampton acted on behalf of the respondents in the judicial review. While a lay litigant may recover disbursements, he or she is not entitled to recover costs.6I do not accept Mr Hampton's submission that this principle is not engaged in this case. On the face of it, the invoice relates to work undertaken by Mr Hampton in preparing for and presenting the appeal. Claims for disbursements in cases involving litigants in person should not be used to advance what is in reality a costs claim. Further, this matter has to be considered in light of the fact that the appeal was a judicial review appeal.[8] Finally, the amounts claimed are not reasonable and are disproportionate to the circumstances of the proceeding.7 In terms of the photocopying and related expenses, the invoice to the Commissioner includes the following:Compilation of case on appeal (Seven sets)To: Photocopy:($0.50 p.p.) $14,630.00To: Pagination, collation andbinding(40 hours at $25.00 p.h.) $1,000.00To: Binding and dividers (at cost) $2,800.00To: Secretarial Services(32 hours at $25.00 p.h.) $800.00To: Indexing and classification(16 hours at $200.00 p.h.) $3,200.00$22,430.00[9] There is a dispute between the parties over the need for the respondents to have prepared a part of the Case on Appeal (section D). I cannot resolve that conflict but the reasonableness of the amounts claimed need to be considered in light of the fact the Commissioner had responsibility for the preparation of the Case on Appeal. The Commissioner did prepare a Case on Appeal. The respondents prepared what6 Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 439–440.7 Rule 14.12(2)(d) and (3) of the High Court Rules.became a second section D of the Case on Appeal. In these circumstances and by comparison with the disbursements on the other appeals, the amounts claimed are not reasonable.[10] The application for review is accordingly dismissed.Solicitors:Crown Law Office, Wellington for Appellant