SISSON v COMMISSIONER OF INLAND REVNEUE [2017] NZHC 107

SISSON v COMMISSIONER OF INLAND REVNEUE [2017] NZHC 107 [8 February 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2016-409-000637[2017] NZHC 107BETWEEN THERESE ANNE SISSONPlaintiffAND COMMISSIONER OF INLANDREVNEUEDefendantCIV-2015-409-000043BETWEEN COMMISSIONER OF INLANDREVENUEPlaintiffAND CHESTERFIELDS PRESCHOOLSLIMITED (IN LIQUIDATION)First DefendantTHERESE ANNE SISSONSecond DefendantCIV-2016-409-000040BETWEEN CHESTERFIELDS PRESCHOOLSLIMITEDPlaintiffAND THERESE ANN SISSONDefendantTHE COMMISSIONER OF INLANDREVENUEIntervenerCIV-2016-409-0000185BETWEEN THERESE ANNE SISSONApplicantAND THE OFFICIAL ASSIGNEE (REESTATE OF DAVID JOHN HAMPTON)First RespondentTHE COMMISSIONER OF INLANDREVENUESecond RespondentCIV-2016-409-000453BETWEEN THERESE ANNE SISSONApplicantAND IAG NEW ZEALAND LIMITEDRespondentHearing: (Dealt with on the papers)Counsel: T A Sisson Plaintiff/DefendantS Kinsler and P Shamy for Commissioner of Inland RevenueK Kendrick for Chesterfields Preschools Limited (InLiquidation)G Slevin for Official AssigneeM Mitchell for IAGJudgment: 8 February 2017JUDGMENT OF GENDALL J[1] These proceedings have been set down for hearing (five days allowed) commencing on Monday next 13 February 2017.[2] On 7 February 2017 the defendant in proceedings ending -40 and -43, Therese Ann Sisson (Ms Sisson) filed a memorandum in this Court seeking once again an adjournment of this hearing. Today, 8 February 2017, counsel for each of the other parties in these various proceedings, Chesterfields Preschools Limited (in liquidation), The Commissioner of Inland Revenue, The Official Assignee, and IAG NZ Limited, filed a joint memorandum opposing any adjournment of this proceeding.[3] Since late May 2016 the trial for these consolidated proceedings had been set down originally to be heard commencing on 28 November 2016. On the morning this hearing was to commence Ms Sisson on medical grounds sought and was granted an adjournment of the trial over the opposition of all other parties. At that point a fixed date for these matters was allocated immediately with this adjourned hearing to commence on Monday next, 13 February 2017.[4] Ms Sisson's memorandum of 7 February 2017, as I have noted, requested anadjournment of this fixed trial date less than one week before it is due to commence.[5] The basis of Ms Sisson's present request appears to be her view of the need for separate representation and/or party status for her daughter, Ms Olivia Hampton (Ms Hampton), her suggestion that there has been insufficient time for this to be arranged, and what she claims now is her own inability to represent Ms Hampton'sinterests adequately. It does not appear at this stage that Ms Sisson is also saying that she herself is too unwell to proceed with the hearing of these matters on 13 February 2017, which was the basis for the original adjournment of the 28 November 2016 fixture.[6] This latest request for an adjournment of the forthcoming trial follows a lengthy telephone conference of all parties which I held in this matter on 1 February 2017. This telephone conference followed concerns expressed by a number of counsel for the parties other than Ms Sisson in this proceeding because apparently Ms Sisson had just advised them at that point that she was considering seeking a further adjournment this time of the 13 February 2017 trial. At that point I issued a minute dated 1 February 2017 amongst other things making the following directions:(a) At this point the oral application by Ms Sisson for an adjournment of the 3 – 5 day hearing scheduled for these matters to commence on 13 February 2017 is rejected. That hearing is to commence at 10 a.m. on 13 February 2017 as I signalled in my decision given on 28 November 2016.(b) Any formal application Ms Sisson intends to bring to join Olivia (Ms Hampton) and/or the beneficiaries of the Trust as a party to or as a third party intervener in these proceedings and for any application for appointment of a litigation guardian, is to be filed and served together with full supporting material by 5 p.m. on Friday, 3 February 2017.(c) If any such application is brought then any opposition to the application together with any supporting material is to be filed and served by 5 p.m. on 7 February 2017.(d) If any such application is brought then the application and any opposition to it is to be immediately provided to me and an urgent telephone conference of all parties is to be arranged to consider its proper disposition[7] Despite these directions, no such application to join Ms Hampton and/or the beneficiaries of the Trust as a party to or as a third party intervener in these proceedings, or for appointment of any litigation guardian has been filed by Ms Sisson or any other party. Nor has the Court in any way heard from Ms Hampton herself or Mr Richard Maze who Ms Sisson says has "agreed to represent Olivia" inthese proceedings.[8] Instead, Ms Sisson simply filed her 7 February 2017 memorandum seeking an adjournment of the 13 February 2017 hearing without any application for third party joinder or appointment of a litigation guardian. Nor has any supporting evidence been provided in any way.[9] On all of these matters I am satisfied that Ms Sisson has had ample time to liaise and engage counsel for her daughter Ms Hampton or otherwise in this matter. The parties to these proceedings were all notified of the 28 November 2016 hearing date on 25 May 2016. Following the adjournment of that November trial date the new hearing date of 13 February 2017 was set immediately.[10] At the telephone conference on 1 February 2017 Ms Sisson explained that Ms Hampton is only a discretionary beneficiary of the Anolbe Family Trust, the trust at issue here. As a discretionary beneficiary Ms Hampton does not have a legal or equitable interest in any trust property and as such I am satisfied Ms Hampton is not required to be a party to this proceeding, nor is her presence before the Court in this case necessary. In this regard, the Court of Appeal in Johns v Johns1 said that:A so-called discretionary interest in trust property does not constitute a legal or equitable interest in that property.1 Johns v Johns [2004] 3 NZLR 202 at [31].[11] Rule 4.23(2) High Court Rules provides too that there is no need to join persons beneficially interested in a trust because trustees can represent those persons. It is clear that a court however may join a party if the interests of the trustees and the beneficiaries are not aligned. In my view, however, there is nothing before the Court to suggest this may be the case here. There is no explanation by Ms Sisson in any way as to why she considers she may not be capable of representing her daughter Ms Hampton's interests and the interests of other beneficiaries of the Trust. Nor hasshe brought any appropriate application in this Court to this end as she was directed to do.[12] Ms Sisson now seeks an adjournment of the 13 February 2017 trial in terms of r 10.2 of the High Court Rules. In terms of these rules an adjournment is only to be granted if it is in the interests of justice to do so. The interests of justice relate not only to the immediate parties but also to the public interest in achieving the most efficient use of Court resources – Cygnet Farms Ltd v ANZ Bank NZ Ltd.2 This is the second adjournment that Ms Sisson has sought and again it is sought at the eleventh hour. The five days set aside for the fixture with respect to these proceedings may well be unable to be re-allocated to another matter if an adjournment is granted due to the close timeframes involved. Questions must be raised as to the general public interest if matters here are adjourned for a second time.[13] In O'Malley v Southern Lakes Helicopters Ltd3 Tipping J stated that when considering whether to grant an adjournment a Court must consider:whether or not that is necessary in order to do justice between the parties.One must not overlook that not only is it necessary to do justice to the party who is seeking the adjournment but also justice to the party who wishes to retain the benefit of the fixture.[14] I am satisfied it is not in the best interests of any of the other parties to these proceedings to have the adjournment Ms Sisson seeks granted. At the earlier 28 November 2016 hearing counsel for all parties came to the hearing in Christchurch, some from centres elsewhere, only to be sent away at the last minute.2 Cygnet Farms Ltd v ANZ Bank NZ Ltd [2016] NZHC 1945 at [8].3 O'Malley v Southern Lakes Helicopters Ltd (HC) Christchurch, CP513/89, 4 December 1990.Those parties have advised they have commenced preparation for the new 13 February 2017 hearing and arrangements made by counsel who are required to travel to Christchurch for this hearing. Given that I am satisfied no good reason hasbeen advanced to suggest that Ms Hampton's interests cannot be properlyrepresented here by Ms Sisson, it could not be said that it is in the interests of justice and the parties to this proceeding that yet again these proceedings should be further adjourned.[15] Indeed, in my 28 November 2016 minute following the earlier adjournment, I held that the trial was to be adjourned but was fixed as a firm date for 13 February2017 "barring major unavoidable matters". The present adjournment being soughtby Ms Sisson, as I see it, could not be said to be a major unavoidable matter. Not only has Ms Sisson had ample time to make arrangements for counsel and to seek by way of application that her daughter Ms Hampton be joined to this proceeding, she has not in any sense shown to the Court any grounds on which Ms Hampton here has a right to be joined as a party or third party intervener to these proceedings.[16] For all these reasons I reject Ms Sisson's latest application to have the trial ofthese matters scheduled to commence on 13 February 2017 adjourned. That hearing will commence at 10 a.m. next Monday and I confirm also that the directions I made at paragraph [10](e) and (f) of my minute of 1 February 2017 will continue to apply....................................................Gendall JSolicitors:Lane Neave, ChristchurchPhillip Shamy, ChristchurchMeredith Connell, ChristchurchCopy to Defendant