BARTON v THE COMMISSIONER OF INLAND REVENUE [2018] NZCA 399
Court granted both extensions because the appellant paid most of the required security and incarceration partly explained delay, the respondent was not prejudiced by the delay in filing the case on appeal, and the respondent is entitled to protection by security so the balance must be paid by a fixed date rather...
Source-derived case information.
- Citation
- [2018] NZCA 399
- Parties
- Appellant: David Simon Barton; Respondent: The Commissioner of Inland Revenue
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 3 October 2018
- Procedural Posture
- Civil Appeal (court of Appeal) / Application for Extension of Time to Pay Security for Costs and to File the Case on Appeal
- Outcome
- Applications granted
- Legal Topics
- Security for Costs, Extension of Time, Appeal Procedure, Default Judgment, Tax Assessment, Bankruptcy Adjudication, Effect of Incarceration on Litigation
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Simon Barton
Appellant
The Commissioner of Inland Revenue
Respondent
Procedural Posture
Civil Appeal (court of Appeal) / Application for Extension of Time to Pay Security for Costs and to File the Case on Appeal
Legal Issues
- 1 Whether to grant extension of time to pay remaining security for costs
- 2 Whether to grant extension of time to file the case on appeal and to seek a hearing date
- 3 Whether security for costs should be reduced given partial payment and appellant's incarceration
Ratio Decidendi
Court granted both extensions because the appellant paid most of the required security and incarceration partly explained delay, the respondent was not prejudiced by the delay in filing the case on appeal, and the respondent is entitled to protection by security so the balance must be paid by a fixed date rather than reduced.
Court Disposition
Applications granted
Orders
- Security for costs to be paid in full by 24 October 2018.
- Case on appeal to be filed and a hearing date sought by 3 December 2018.
Full Case Text
Judgment text and source record
1 paragraphs
BARTON v THE COMMISSIONER OF INLAND REVENUE [2018] NZCA 399 [3 October 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA161/2018[2018] NZCA 399BETWEEN DAVID SIMON BARTONAppellantAND THE COMMISSIONER OF INLANDREVENUERespondentCourt: Kós P and Miller JCounsel: Appellant in personS J Leslie for RespondentJudgment:(On the papers)3 October 2018 at 2.15 pmJUDGMENT OF THE COURTA The application for an extension of time to pay security for costs is granted.Security for costs must be paid by 24 October 2018.B The application for an extension of time to file the case on appeal and to seeka hearing date is granted. The case on appeal must be filed and a hearingdate sought by 3 December 2018.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Barton moves to extend time to pay security (r 35) and for filing a case onappeal (r 43).[2] The appeal stems from unpaid tax for which the Commissioner obtainedjudgment by default.1 Mr Barton was adjudicated bankrupt on the debt although heclaimed it was wrongly calculated and maintained he could pay hiscorrectly-determined tax liabilities.[3] Mr Barton has been convicted after trial of failing to file tax returns with intentto evade tax.2 This covers the same income years for which the Commissionerassessed him to quantify the debt the subject of this appeal.[4] The appeal was filed on 4 April and security of $6,600 was due on2 May. Mr Baton paid $5,500. By consent he was given a Registrar's extension to1 June 2018, but he did not pay. (The Registrar appears to have acted withoutjurisdiction because the application was not made in time under r 37(6) but nothingturns on that.) The case on appeal was due on 4 July, being three months afterthe appeal was brought.3[5] The conduct of the appeal has been unsatisfactory. Mr Barton accounts for thatby pointing out that he is now in prison, having been sentenced to 38 and a half monthson 17 August 2018, and was previously in custody after his conviction on 14 June.This is not a complete explanation, as the Commissioner points out. But the delay infiling the case on appeal is some two and a half months and she is not prejudiced byit.[6] Further, Mr Barton has paid most for the security. We are not presentlyprepared to refuse him an extension on the ground that his appeal has no merit, asthe Commissioner urges.4 Nor are we prepared to reduce security to the amountalready paid however. The Commissioner is entitled to the protection that securityaffords. We recognise the Commissioner is likely to assume some of the burden ofproviding the Court with an appropriate bundle of documents, given that Mr Barton isin prison and will have limited access to resources.1 Commissioner of Inland Revenue v Barton HC Whangārei CIV-2017-488-47, 5 March 2018.2 R v Barton [2018] NZDC 17502.3 Court of Appeal (Civil) Rules 2005, r 40(2).4 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39].[7] The application for an extension of time to pay security for costs is granted.Security for costs must be paid by 24 October 2018.[8] The application for an extension of time to file the case on appeal is granted.The case on appeal must be filed and a hearing date sought by 3 December 2018.Solicitors:Crown Law Office, Wellington for Respondent