TAYLOR v COMMISSIONER OF INLAND REVENUE [2023] NZCA 515

TAYLOR v COMMISSIONER OF INLAND REVENUE [2023] NZCA 515 [25 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA201/2023[2023] NZCA 515BETWEEN GRAHAM HERBERT TAYLORApplicantAND COMMISSIONER OF INLANDREVENUERespondentCourt: French and Wylie JJCounsel: Applicant in personA B Goosen for RespondentJudgment:(On the papers)25 October 2023 at 11.00 amJUDGMENT OF THE COURTA The application under r 29A of the Court of Appeal (Civil) Rules 2005 foran extension of time to appeal is declined.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Taylor wishes to appeal a High Court judgment1 which declined to granthim an extension of time for bringing an appeal in that Court against a District Courtdecision.2 He has an appeal as of right to this Court. However, because he also filed1 Taylor v Commissioner of Inland Revenue [2023] NZHC 460 [High Court judgment].2 Commissioner of Inland Revenue v Taylor DC Auckland CIV-2016-004-2079, 24 February 2022.his appeal in this Court out of time, he requires an extension of time under r 29A ofthe Court of Appeal (Civil) Rules 2005 in order to proceed with his appeal.3Background[2] In March 2020 the Commissioner of Inland Revenue obtained a judgment bydefault in the District Court against Mr Taylor for $496,948.87. The debt related tounpaid tax.[3] Mr Taylor, who lives in Australia, applied to have the judgment set aside onthe ground he had not been served with the proceeding. He claimed to have beenunaware of it and also said he had been experiencing health problems.[4] The application was declined by Judge Harrison, prompting Mr Taylor toappeal to the High Court. He was out of time in filing his appeal by 23 working days.In declining to grant an extension of time, the High Court Judge, Venning J, did so onthe ground that the proposed appeal was devoid of merit.4[5] The appeal against Venning J's decision to this Court was five working daysout of time. That is not a long delay and it has not occasioned any prejudice to therespondent. Mr Taylor has not provided any reason for the delay although we acceptit may be the result of health difficulties.[6] Those matters point towards an extension of time being granted. However,they are outweighed in our view by the fact the proposed appeal seeking to set asidethe District Court's default judgment falls within the Almond v Read category of anappeal which is "clearly hopeless".5 It cannot possibly succeed. That is because ofs 109 of the Tax Administration Act 1994. The effect of s 109 is that once a taxassessment has been made its correctness can only be challenged in proceedings under3 The application filed was wrongly described as an application under r 16A, but by minute dated30 June 2023 Brown J directed the application be treated as an application under r 29A.4 High Court judgment, above n 1, at [13]–[17].5 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39(c)].the Tax Administration Act.6 Mr Taylor had no defence to the claim in theDistrict Court. That in turn means his application to set aside the default judgmentwas futile. It also means that even if Mr Taylor had filed a statement of defence tothe Commissioner's claim for unpaid tax, he could never have succeeded in theDistrict Court.[7] In those circumstances, we consider it is not in the interests of justice for anextension of time to be granted.[8] For completeness we should add that, as regards service of the Commissioner'sproceeding, Court records show it was served pursuant to a valid order for substitutedservice.Outcome[9] The application under r 29A for an extension of time to appeal is declined.[10] The respondent has not sought costs and we therefore make no award.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent6 Golden Bay Cement Co Ltd v Commissioner of Inland Revenue [1996] 2 NZLR 665 (CA) at 670;Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR153 at [53] per Blanchard, Tipping and Gault JJ; and Smith v Commissioner of Inland Revenue[2019] NZCA 521 at [21]–[22]. In limited circumstances, which do not apply in this case, judicialreview proceedings in the High Court may be available: Tannadyce at [58]–[59] and [61] perBlanchard, Tipping and Gault JJ.