THE COMMISSIONER OF INLAND REVENUE v OYSTER ENTERTAINMENT LIMITED [2014] NZHC 2195
Application struck out because applicant had not established a practicable route to have the IRD reassess liabilities (IRD required third-party funding and Official Assignee would not pursue), so the existing debt of approx. $200,000 would remain and there was no basis to terminate the liquidation; no costs ordered...
Source-derived case information.
- Citation
- [2014] NZHC 2195
- Parties
- Plaintiff: Commissioner of Inland Revenue; Defendant: Oyster Entertainment Limited; Applicant/director/shareholder: Duane L Wichman-Evans; Interested Party/liquidator: Official Assignee
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 5 September 2014
- Procedural Posture
- Companies Act 1993 Application to Terminate/annul Liquidation / Application Struck Out at Interlocutory Hearing
- Outcome
- Application struck out; no order for costs
- Legal Topics
- Liquidation, Termination/annulment of Liquidation, Tax Assessments/reassessment, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Commissioner of Inland Revenue
Plaintiff
Oyster Entertainment Limited
Defendant
Duane L Wichman-Evans
Applicant/director/shareholder
Official Assignee
Interested Party/liquidator
Procedural Posture
Companies Act 1993 Application to Terminate/annul Liquidation / Application Struck Out at Interlocutory Hearing
Legal Issues
- 1 Whether liquidation can be terminated based on recalculation/reassessment of tax liabilities
- 2 Whether applicant or shareholder may procure reassessment and thereby justify discharge of liquidation
- 3 Whether costs should be awarded to the successful party given applicant's conduct
Ratio Decidendi
Application struck out because applicant had not established a practicable route to have the IRD reassess liabilities (IRD required third-party funding and Official Assignee would not pursue), so the existing debt of approx. $200,000 would remain and there was no basis to terminate the liquidation; no costs ordered because applicant acted in good faith.
Court Disposition
Application struck out; no order for costs
Orders
- Application filed 5 August 2014 struck out
- No order for costs
Full Case Text
Judgment text and source record
1 paragraphs
THE COMMISSIONER OF INLAND REVENUE v OYSTER ENTERTAINMENT LIMITED [2014] NZHC 2195 [5 September 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-004964[2014] NZHC 2195IN THE MATTER of the Companies Act 1993BETWEEN THE COMMISSIONER OF INLANDREVENUEPlaintiffAND OYSTER ENTERTAINMENT LIMITEDDefendantHearing: 5 September 2014Appearances: Mr C Van Der Merwe for CommissionerMr Duane Wichman-Evans - self represented shareholderMr R Sena for the Official AssigneeJudgment: 5 September 2014ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE[1] Mr Duane L Wichman-Evans has filed an application seeking an order for termination of Oyster Entertainment Limited which is in liquidation. Essentially he considers that if accounts between the company of which he is a director and the Commissioner could be re-calculated on the basis of fresh returns then there would be no debt to support the continued liquidation and the liquidation could be discharged or annulled.[2] I have pointed out to Mr Wichman-Evans this morning after discussion with counsel for the Commission of Inland Revenue and the Official Assignee that because that point has not yet been reached (and probably will never be able to be) there is no basis for ending the liquidation. The procedures that directors/shareholders of the company would have to negotiate to get to the point where a reconsideration of the liquidation could be undertaken by the Official Assignee are complex and will cost money. The Inland Revenue is not prepared to re-visit the assessments that underlie the CIR's debt without financial contributionfrom a third party (whether Mr Wichman-Evans or someone else). So long as the Official Assignee who is the correct party to take such matters up with the IRD is concerned is not prepared to do so there is little hope, I'm afraid, that the point willever be reached where the assessments are overturned. That being so it seems almost certain that the existing debt of approximately $200,000 will remain unpaid and that being so there will be no possible basis for a termination of the liquidationof the company. Therefore the application which Duane Leslie Wichman-Evansfiled 5 August 2014 is struck-out.[3] The Commission of Inland Revenue has sought costs on the application. I consider that given the position of the applicant is that he brought proceedings in good faith, albeit mistakenly, that this is a case where exceptionally the discretion of the Court to award costs in favour of the successful party should not be followed. There will be no order for costs._____________J.P. DoogueAssociate Judge