KENSINGTON DEVELOPMENTS LIMITED (IN RECEIVERSHIP) v COMMISSIONER OF INLAND REVENUE [2015] NZSC 77
The Supreme Court dismissed leave because the transfer under s138N was within the discretion of the lower courts, those courts had considered the applicant's prejudice arguments (representation and costs) and found them insufficient, and the proposed appeal did not raise a matter of public importance nor an...
Source-derived case information.
- Citation
- [2015] NZSC 77
- Parties
- Applicant: Kensington Developments Limited (in Receivership); Respondent: Commissioner of Inland Revenue
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 4 June 2015
- Procedural Posture
- Application for Leave to Appeal to the Supreme Court / Leave Application Dismissed; Interlocutory Transfer Decision Under S138 N Considered
- Outcome
- Application for leave to appeal dismissed
- Legal Topics
- Transfer of Proceedings, Taxation Review Authority, Costs, Section 138 N Tax Administration Act 1994, Leave to Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kensington Developments Limited (in Receivership)
Applicant
Commissioner of Inland Revenue
Respondent
Procedural Posture
Application for Leave to Appeal to the Supreme Court / Leave Application Dismissed; Interlocutory Transfer Decision Under S138 N Considered
Legal Issues
- 1 Whether the High Court correctly exercised its discretion under s138N to transfer proceedings from the Taxation Review Authority to the High Court
- 2 Whether the proposed transfer would cause prejudice to the applicant by affecting representation and exposure to costs
- 3 Whether the matter raised a point of general or public importance or a miscarriage of justice warranting leave to appeal
Ratio Decidendi
The Supreme Court dismissed leave because the transfer under s138N was within the discretion of the lower courts, those courts had considered the applicant's prejudice arguments (representation and costs) and found them insufficient, and the proposed appeal did not raise a matter of public importance nor an appearance of miscarriage of justice.
Court Disposition
Application for leave to appeal dismissed
Orders
- Leave to appeal dismissed
- Applicant to pay respondent costs of $2,500
Full Case Text
Judgment text and source record
1 paragraphs
KENSINGTON DEVELOPMENTS LIMITED (IN RECEIVERSHIP) v COMMISSIONER OF INLAND REVENUE [2015] NZSC 77 [4 June 2015]IN THE SUPREME COURT OF NEW ZEALANDSC 25/2015[2015] NZSC 77BETWEEN KENSINGTON DEVELOPMENTSLIMITED (IN RECEIVERSHIP)ApplicantAND COMMISSIONER OF INLANDREVENUERespondentCourt: William Young, Glazebrook and Arnold JJCounsel: S R G Judd for ApplicantM Deligiannis and K I S Naik-Leong for RespondentJudgment: 4 June 2015JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant is to pay the respondent costs of $2,500.____________________________________________________________________REASONS[1] In issue is a judgment of the Court of Appeal1 upholding a decision by Allan J2 to transfer challenge proceedings filed in the Taxation Review Authority to the High Court made under s 138N of the Tax Administration Act 1994. That section relevantly provides:1 Kensington Developments Ltd (in rec) v Commissioner of Inland Revenue [2015] NZCA 60, (2015) 27 NZTC 22-000 [Court of Appeal judgment].2 Commissioner of Inland Revenue v Kensington Developments Ltd [2013] NZHC 3537, (2013) 26 NZTC 21-059 [High Court judgment].138N Proceedings may be transferred to different hearing authorities(1) If a disputant commences a challenge in the High Court,—(a) The Commissioner may apply to the High Court to have the challenge transferred to a Taxation Review Authority; or(b) The High Court may, of its own motion, transfer the challenge to a Taxation Review Authority.(2) If a disputant commences a challenge in a Taxation Review Authority, the Commissioner may apply to the High Court to have the challenge transferred to the High Court.[2] Kensington Development Ltd's grounds for opposing the transfer applicationwere fully considered by both Allan J and the Court of Appeal. The most meritorious of these (in terms of likely prejudice to Kensington associated with transfer) related to costs. Kensington is a company controlled by Mr J G Russell. He is not a lawyer and would be able to appear for Kensington before the Taxation Review Authority but not the High Court. As well, if the challenge was determined by the Taxation Review Authority, Kensington, if unsuccessful, would not be liable for costs. These considerations, however, were recognised and allowed for by both Allan J3 and the Court of Appeal.4[3] The point at issue is in substance of an interlocutory character5 and the case has now been fully considered twice. The proposed appeal does not raise a point of general or public importance such as to warrant a grant of leave to appeal and we see no appearance of a miscarriage of justice.Solicitors:Ladbrook Law Limited, Auckland for ApplicantCrown Law Office, Wellington for Respondent3 High Court judgment, above n 2, at [53]–[58].4 Court of Appeal judgment, above n 1, at [10] and [33].5 We note that the applicant has indicated that the challenge will be abandoned if the proceedings are transferred from the Taxation Review Authority to the High Court. The underlying issue, however, remains interlocutory in character.