RUSSELL v COMMISSIONER OF INLAND REVENUE [2014] NZHC 2956
The application for recall was declined because the court would not alter the substance of the relief on form grounds; whether styled as a declaration or an order, the Commissioner is restrained from commencing bankruptcy proceedings against Mr Russell pending further order of the Court.
Source-derived case information.
- Citation
- [2014] NZHC 2956
- Parties
- Applicant: John George Russell; Respondent: Commissioner of Inland Revenue
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 25 November 2014
- Procedural Posture
- Application for Interim Relief Against Commencement of Bankruptcy Proceedings / Interim Relief Granted; Respondent Applied to Recall Judgment to Amend Form of Relief
- Outcome
- Application for recall of judgment declined; original interim relief remains in effect in substance.
- Legal Topics
- Interim Relief, Declaration Versus Order, Jurisdiction to Grant Relief Against the Crown, Section 8(2) Judicature Amendment Act 1972, Crown Proceedings Act 1950
Source-derived case record
Summary, issues, holding and outcome
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Parties
John George Russell
Applicant
Commissioner of Inland Revenue
Respondent
Procedural Posture
Application for Interim Relief Against Commencement of Bankruptcy Proceedings / Interim Relief Granted; Respondent Applied to Recall Judgment to Amend Form of Relief
Legal Issues
- 1 Whether the High Court has jurisdiction to make an interim order against the Commissioner (Crown) under s 8(2) Judicature Amendment Act 1972
- 2 Whether the appropriate form of relief is a declaration rather than an interim order
- 3 Whether the applicant should be restrained from the Commissioner commencing bankruptcy proceedings pending further order
Ratio Decidendi
The application for recall was declined because the court would not alter the substance of the relief on form grounds; whether styled as a declaration or an order, the Commissioner is restrained from commencing bankruptcy proceedings against Mr Russell pending further order of the Court.
Court Disposition
Application for recall of judgment declined; original interim relief remains in effect in substance.
Orders
- Application by the Commissioner to recall the judgment dismissed/declined
- Judgment sealed as delivered
Full Case Text
Judgment text and source record
1 paragraphs
RUSSELL v COMMISSIONER OF INLAND REVENUE [2014] NZHC 2956 [25 November 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2014-404-001281[2014] NZHC 2956UNDER the Judicature Amendment Act 1972BETWEEN JOHN GEORGE RUSSELLApplicantAND THE COMMISSIONER OF INLANDREVENUERespondentHearing: 25 November 2014Appearances: SRG Judd for ApplicantP Courtney for RespondentJudgment: 25 November 2014(ORAL) JUDGMENT (NO. 2) OF ANDREWS J[Respondent's application for recall][1] In my judgment delivered on 26 August 2014 I granted the interim relief sought by the applicant, namely:1 I have concluded that an interim order should be made prohibiting the Commissioner from commencing bankruptcy proceedings against Mr Russell, pending further order of the Court.[2] The Commissioner has filed a notice of appeal against my judgment.[3] On 3 November 2014, the Commissioner filed an application seeking recall of my judgment, to amend the form of relief granted. In a memorandum in support of the application, Mrs Courtney noted that my attention had not been drawn to s 8(2) of the Judicature Amendment Act 1972, and relevant consequential provisions in the Crown Proceedings Act 1950. Briefly summarised, Mrs Courtney submitted that the appropriate order to make against the Commissioner was a declaration that the Commissioner ought not to commence bankruptcy proceedings. She submitted that the Court did not have jurisdiction to make an "interim order".[4] I directed that the application be served on counsel for Mr Russell. On 24 November 2014, Mr Judd filed a memorandum opposing the application for recall. He submitted that it is by no means certain whether the appropriate form in which the Commissioner is to be restrained from taking certain actions is by way of a declaration or an order. He referred to cases where an order had been made.[5] This issue was not argued before me at the hearing, I do not consider it appropriate to deal with it now. Accordingly, I decline the application for recall. The judgment is to be sealed as delivered.[6] However, for the assistance of the parties, and any Court considering the judgment subsequently, I record that, whether the relief was in the form of a declaration or an order, it would have been to the same effect. That is, the Commissioner is restrained from commencing bankruptcy proceedings against Mr Russell, pending further order of the Court.________________________Andrews J1 Russell v Commissioner of Inland Revenue [2014] NZHC 2034 at [46].