OʼBRIEN v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 2142

OʼBRIEN v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 2142 [9September 2016]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCIV-2010-419-986[2016] NZHC 2142BETWEEN STEPHEN JOHN OʼBRIENApplicantAND MINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentHearing: 29 June 2016and (on papers) 6 and 7 July 2016Appearances: Mr A Smith for ApplicantMr T Tran for RespondentJudgment: 9 September 2016JUDGMENT OF ASSOCIATE JUDGE J P DOOGUEThis judgment was delivered by me on09.09.16 at 3.30 pm, pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr O'Brien was adjudicated bankrupt on 6 December 2010. Unless he isdischarged prior to that date, by 6 December 2016 he will have been bankrupt for six years. This compares with the standard period of three years after which, in the absence of any objection on the part of the Official Assignee the bankruptcy expires.1[2] Mr O'Brien now applies for a discharge pursuant to s 294 of the Insolvency Act 2006.[3] Before his bankruptcy, Mr O'Brien had been involved in propertydevelopment in Auckland. His activities came to an end in 2009 at which time he had debts of $1,205,440.48. One of his creditors, the BNZ sought and obtained his bankruptcy on 6 December 2010 based on the debt that he owed of $1,184,216.06 to that creditor.[4] Shortly before he was adjudicated bankrupt a bank account was opened on23 November 2010. The Official Assignee has submitted that Mr O'Brien openedthis bank account knowing that bankruptcy proceedings were on foot. The accountwas described by Mr O'Brien when he eventually made disclosure concerning it as "O'Brien's Property Management Trust Account."[5] Mr O'Brien said that he actually spoke to an officer of the OfficialAssignee's office concerning this matter before he was adjudicated bankrupt. He said that he told the Official Assignee's employee that he intended to open theaccount because he wanted if possible during the course of his bankruptcy to continue carrying on property management which would involve collecting rents. There is no evidence concerning this aspect of the matter from the Official Assigneebut that may be because apparently the first occasion on which Mr O'Brien raisedthis particular assertion was before the Court when he was being examined on29 June 2016. The gist of what Mr O'Brien said was that he had told the employeeof his intention to open the account and to carry on the business and that she had1 Section 290 of the Insolvency Act 2006.advised him that there would be restrictions on him taking part in the management of the business after he was bankrupted.[6] Nothing particularly turns upon the account that Mr O'Brien has given of his discussions with the Official Assignee's office prior to his bankruptcy actuallytaking place. It is, as Mr Tran observed, unusual for a bankrupt to make contact with the Official Assignee prior to adjudication on bankruptcy but there was little doubtthat Mr O'Brien knew ahead of his adjudication actually occurring that he was goingto be made bankrupt. I would not rule out the possibility that he did in fact make contact and have a discussion along the lines that he said he did.[7] The case which the Official Assignee puts forward gives details about the dates when the bankrupt sought permission from the Official Assignee. It is clear that the bankrupt understood what his obligations were. The Official Assignee says that he was advised of them at the time when his bankruptcy commenced. Consistent with that, the OA states in his report, and is not contradicted in this regard, that the bankrupt made his first application to take part in the management of the business the day after he filed a statement of affairs, that is on 14 December 2010. That application was declined.[8] The account was used as part of a property management business whichMr O'Brien carried on from at least 29 November 2012 which is when deposits of money were made from rental properties which Mr O'Brien was managing. As at3 June 2014 the account held $43,000 approximately. The Official Assignee formedthe view that Mr O'Brien did not comply with his obligations as a bankrupt. Specifically he had taken part in the management or control of a business, namely managing rental properties, without first obtaining the consent of the Official Assignee. Further he had not complied with his responsibilities to keep the Official Assignee informed as to his changes in employment, income and financial circumstances. The basis for this view was that Mr O'Brien did not disclose his involvement in the property management company to the Official Assignee.[9] As a result, the Official Assignee objected by way of Notice of Objection dated6 December 2013 when Mr O'Brien became eligible for discharge.[10] In due course the Official Assignee filed charges against Mr O'Brien whichare discussed below.[11] Mr O'Brien made his first application to be self-employed in property management on 14 December 2010, a day after he had filed his statement of affairs.a) He proposed to be involved in collecting rents on behalf of landlords and for taking out his commission.[12] The Official Assignee declined Mr O'Brien's application for the followingreasons:a) No business plan had been provided, no cash flow nor budget. There was no working capital that the Official Assignee was aware of either.b) There was no apparent benefit to the creditors from the proposal;c) Whilst it was commendable for him to wish to come off the benefit, by going almost immediately straight into business again after his adjudication in bankruptcy, he would again be in property management, a business that made him bankrupt in the first instance.d) Mr O'Brien was not prepared to advise potential clients of hisbankruptcy status. This would be a perquisite of the Official Assignee given that he would be handling other people's monies. It was not inthe public interest for such knowledge to be withheld from persons that he would wish to do business with. Full transparency would be required.e) The Official Assignee considered that the application was premature. The Official Assignee knew very little as to his character at this time and suitability (fitness) to be back in business.f) Given the December 2010 adjudication date, the Official Assignee had yet to commence an investigation into this bankruptcy. This wasa prerequisite given the size of the indebtedness and assets once held. Until it was completed, the Official Assignee was not satisfied that he had provided a full accounting of all his financial affairs to the Insolvency and Trustee Service ("ITS").[13] Mr O'Brien was advised to find employment on wages in the first instance atthe time.[14] In May 2012 the Official Assignee advised Mr O'Brien that he considered hewas in breach of his obligations because he was trading on his own account. TheOfficial Assignee records that Mr O'Brien said that his accountant, Richard Edge,was in fact the owner of the business that he was working in.[15] Notwithstanding the advice that he received, Mr O'Brien determined tocarry on the property management business which traded as O'Brien PropertyManagement. He had established a website. Even after his bankruptcy he was described as the owner and manager of that website although at a later date after some scrutiny from the Official Assignee that was changed so that he was describedas "Property Manager".2[16] Thereafter Mr O'Brien took steps apparently designed to put himself in aposition where he would be able to assert that while he was indeed involved in the business of property management he did not do so in a capacity of owner or manager of that business. In September 2011 he advised the Official Assignee that the business was being carried on as part of a company created by two Hamiltonchartered accountants, under the name Property Gurus Limited. Mr O'Brien had in fact apparently reached an arrangement with Property Gurus Limited to function as the operator of a property management business which that company carried on. Hehad entered into a "heads of agreement" with Property Gurus Limited entitling him to receive the sum of $4000 for contract work which he had carried on.[17] In December 2011 Property Gurus Limited confirmed that they had takenover the website of O'Brien Property Management.2 There is evidence that this had occurred by July 2012.[18] In May 2012 the Official Assignee told Mr O'Brien that he was regarded asnow trading on his own account. Mr O'Brien said that his accountant, Richard Edge, would now be the owner of the business up until his discharge.[19] Later that month PG advised the OA that Mr O'Brien was still a propertymanager for the company but there were now only two properties that were being managed, they are on the market and it was in regard to those properties thatMr O'Brien was to receive half of the profit when they were sold.[20] On 29 May 2012 Mr O'Brien submitted a further self-employment application as a property manager. This was declined.[21] In approximately August 2012 Mr O'Brien met with the Official Assignee todiscuss the pending receipt of the $4000. This led to discussions with Property Gurus in which that firm advised that although Mr O'Brien had severed hisconnection with the company he was still carrying on property management work.[22] It is not entirely clear from the evidence, but it would appear to be aroundMay 2012 that Mr O'Brien arranged for a chartered accountant at Cambridge, Mr Edge to take over proprietorship of the Westpac banking account which was usedas the operating bank account for the business. Mr O'Brien emailed the Official Assignee on 22 May 2012 stating that Richard Edge would open and administer a trust account to collect and disburse rental income. However this was not agreed to by Richard Edge who stated that it was not the intention of his firm to collect and disburse rents but that they would act as signatories on any proposed business bank account.[23] In July 2014 the Ministry of Business, Innovation and Employment'sEnforcement Unit interviewed Mr O'Brien. The response that Mr O'Brien made toaccusations that he had been carrying on a business without consent was that the officer at the Official Assignee who was dealing with them had been given full information about his activities and consented to them. During this period, theEnforcement Unit's investigators located a Westpac Bank account in the name of"O'Brien Property Management" which had the sum of $43,000 approximately in it.This account was closed and the Official Assignee recovered approximately $37,000 from the account.[24] Apparently, as a result of the investigation it came to light that Mr O'Brienhad entered into an arrangement with a person by the name of Trent Booth whereby Mr Booth would take over the business on terms that when Mr O'Brien's bankruptcy ended, the business would be transferred back to him. Mr O'Brien in fact said thatthe arrangement with Property Gurus Limited had been on the same basis, too. While he would be employed by Property Gurus Limited and would receive remuneration in the form of a share of profits, they were to actually own the business during the time when he was in bankruptcy and at the end it would revert to him.[25] The evidence establishes in my view that Mr Booth never in fact had anything to do with the business. In the course of the examination I askedMr O'Brien about the terms upon which the business was transferred to Mr Booth. Nothing was apparently paid for the business. Mr Booth did not actually operate thebusiness. His sole role was to be the owner of the business until Mr O'Brien cameout of bankruptcy. I asked Mr O'Brien whether Mr Booth was a trustee for him in regard to the business but the answers received were inconclusive. That would, though, I interpolate, apparently be the correct analysis of this arrangement.[26] Mr O'Brien also engaged the assistance of accountants trading as Maisey andCo in this last stage during which the business was carried on.[27] Subsequently charges were brought against Mr O'Brien and he eventuallyentered guilty pleas in relation to managing a business without the consent of the Official Assignee (x 2) and concealing property. Other charges in relation to wilfully misleading the Official Assignee were withdrawn by leave. On 20 October 2015, at the Hamilton District Court, Judge Collin sentenced Mr O'Brien to 120 hours of community work on each of the charges to be served concurrently.Discussion[28] The position that the bankrupt has taken in regard to the opposition on the part of the Official Assignee is that he made a number of applications to the Official Assignee for permission to carry on business on a self employed basis. He does not actually assert that permission was granted to him.[29] Mr O'Brien apparently takes the view, though, that while he might havesailed close to the wind with regard to the prohibition against carrying on the business of property manager he did not actually breach it. I regard this as an idle argument primarily because he has pleaded guilty in the District Court to doingexactly that. Further, the case which Mr O'Brien advanced himself placed undueemphasis on the technicalities of proprietorship of the business from time to time. This is exemplified by the arrangement with Mr Booth, for example. It was thoughtapparently to be sufficient if Mr O'Brien formally transferred ownership of thebusiness to Mr Booth and that having done so he could carry on with the business. However, s 149 is not explicitly concerned with the ownership of the business. It is concerned with the person carrying on a business or taking part in the management or control of the business. Entering into an arrangement which technically transfers ownership of the business to another person does not therefore absolve the bankrupt from compliance with the requirements of s 149.[30] The submission is made on behalf of Mr O'Brien that he genuinely believedthat he had the consent of the Official Assignee to taking part in the carrying on of the business. This is based upon the arrangements to have other nominal owners ofthe business. I would accept that during the stage when Mr O'Brien was actuallyemployed by Property Gurus Limited it may be that he was not breaching s 149.[31] That example aside, the fact is that businesses do not run themselves. Thefact that Mr O'Brien established and retained the bank account into which rent andbond moneys were paid and in which he accumulated profits could only be reasonably viewed as evidence that he was carrying on business. The fact that he might have during this period had a chartered accountant with signing authority onthe account does not alter that fact. He was attending to all aspects of the business from publicising it via the website, having tenants sign agreements, taking the steps for the bond moneys to be paid in and in general overseeing the business. He was not the employee or agent of another person under whose direction he acted or by whom he was employed.3[32] Mr O'Brien is also quite sure that he never engaged in any deceptive or sharppractice during the time of his bankruptcy. This shows a tendency to self- justification, no matter that it is unjustified, which is of concern. The evidence discloses that Mr O'Brien concealed from the Assignee, and therefore from his creditors whose loss he purports to regret, the accumulated income in the bank account which was eventually located during the course of an investigation.[33] I also regard the nondisclosure of the bank account in contravention of hisobligations by Mr O'Brien is evidence that he was attempting to circumvent his obligations by stealth. It is not to be believed that his case officer consented to his carrying on the business and yet remained in ignorance of the existence of a substantial bank account into which funds were being paid.[34] For all of these reasons I consider that the Official Assignee has correctly summarised matters in the following excerpts from his report to the Court:27. Mr O'Brien knew that he was required to obtain consent of the Official Assignee to be self-employed. Shortly after his adjudication he filed an application with the Official Assignee to be self employed on 14 December 2010.28. The Official Assignee declined to give him consent. Mr O'Brienagain asked to be self-employed on 29 May 2012. Again, he was declined.29. Despite knowing that he was not allowed to be self-employed,documentary evidence such as his "O'Brien Property Management Trust Account" through Westpac statements showed that monies were being deposited into the account.3 Apart from the period when he was employed by Property Gurus Limited.30. The bonds lodged for O'Brien Property Management (tab 29) gives an overview of the activities carried out by O'Brien PropertyManagement between 7 October 2011 to 3 October 2014.31. The bond lodgement forms and bond refund forms obtained, showedthe details of O'Brien Property Management as landlord and hasMr O'Brien's email address (john@obrienproperty.co.nz) and hissignature. This is all indicative of him actively managing propertiesunder O'Brien Property Management. Mr O'Brien was alsoresponsible for taking legal action in the Tenancy Tribunal against tenants for rent arrears.53. During the course of his bankruptcy, Mr O'Brien sought on anumber of occasions to be self-employed. Despite the Official Assignee declining his applications to be self-employed, he nevertheless went ahead which resulted in the successful prosecution against him.[35] I would reject any suggestion that Mr O'Brien, if he contravened hisobligations, did so inadvertently and on account of a lack of business sophistication which was the proposition that his counsel put forward on his behalf.Relevance of findings to discharge application[36] I consider that the correct approach to assessing the application for discharge was articulated by the Court of Appeal in ASB Bank v Hogg:4In conferring a discretion expressed in the broadest terms, the legislation recognises that each case will be different, that the relevant factors may vary from case to case and that the exercise of the discretion must be governed by the circumstances of the particular case having regard to the guidance provided by a consideration of the scheme and purpose of the legislation. In providing for automatic discharge after three years, the legislation recognises that it is not in the public interest that the bankruptcy should endure indefinitely. In providing for earlier discharge, s 108 (now s294) recognises that continuing the bankruptcy to the end of the three years may not be in the public interest. Whether or not it is will be a matter for decision on the particular facts. In that regard, guidance is provided by s 109(2) (now 296(2)) which lists matters on which the Assignee is to report to the High Court in such a case. The Court is to consider the Assignee's report as to the affairs of the bankrupt, the causes of the bankruptcy, the manner in which the bankrupt has performed the duties imposed on him or her under the Act and his or her conduct both before and after the bankruptcy, and also as to any other fact, matter or circumstance that would assist the Court in making its decision. Clearly the Court apprised of the matter will consider the legitimate interests of the bankrupt, the creditors and wider public concerns, but it is neither required nor entitled to impose threshold requirements in the exercise of the discretion so as to derogate from the breadth of the powersconferred under s 110 (now 298)."4 ASB Bank v Hogg [1993] 3 NZLR 156 (CA) at 157-158.Submissions of counsel for Official Assignee[37] Mr Tan referred to the summary of the principles in ASB Bank v Hogg which was set out in Re Whitelaw as follows:51.1 The onus is on the Assignee to satisfy the Court that it is in the public interest that the bankruptcy which would otherwise automatically be discharged after three years should continue for a further period;1.2 The Court has a broad discretion to exercise in regard to all the circumstances of the particular case;1.3 In the absence of good reasons, a bankrupt should normally obtain a discharge;1.4 Public interest factors may, however, mean that an order of discharge should be refused;1.5 As indicated by the matters on which the Assignee is required to report under s 109(2) of the Insolvency Act 1967 (now, s 296(2)), the Court should consider the manner in which the bankrupt has performed the duties imposed on him under the Act and his conduct both before and after the bankruptcy and any other matters that may assist the Court in making its decision; and1.6 The relevant matters therefore include: the interests of the bankrupt; the interests of the creditors; the public interest; and commercial morality and the conduct of the bankrupt.[38] He further submitted that the authorities illustrate a general consensus that the statement from ASB Bank v Hogg, and the summary of the principles therein, provide a starting point for consideration of opposition to discharge. Further he said, in ASB Bank v Hogg the Court of Appeal also referred to the need to keep in mind the scheme and purpose of the legislation.5 Re Peters, ex Marac Finance Ltd [2014] NZHC 1755; [2015] NZCCLR 2; Re Whitelaw HC Hamilton CIV-2004-419-1647, 10 September 2010; ASB v Hogg [1993] 3 NZLR 156 (CA).[39] Mr Tran also submitted that the approach taken in Re Whitelaw was characterised by Bell AJ in Darby v Official Assignee6 as a "routine interests-based approach" and preference was, in that Judge's view, to have regard to a purposive approach, that is, to assess the application in the light of the purposes of bankruptcy which were identified as:a) The administration of the estate of the bankrupt for creditors;b) Making a bankrupt accountable for the insolvency;c) Punishing the bankrupt for any misconduct;d) Protecting the community from risks associated with the bankrupt being in business again;e) Allowing the bankrupt to resume commercial activities freed from the liabilities for which he was adjudicated bankrupt.[40] In Re Peters, exparte Marac Finance Limited7 it was observed that the Darbycomments in relation to punishment need to be read in conjunction with the view expressed by Asher J in Re Kelly exparte, Structured Finance Limited:8The public interest is best approached from the perspective of protecting the public from the insolvent debtor. The issue is not the punishment of the debtor, but avoiding the risk of further conduct to the detriment of the community, in particular in this case the commercial community.[41] I respectfully agree with what Asher J in regard to considerations of punishment. Otherwise, I concur with Re Darby.Submissions for Mr O'Brien[42] The submission was made that the circumstances leading to Mr O'Brien'sbankruptcy were of little assistance in this case. Essentially, Mr Andrew Smith,counsel for Mr O'Brien, submitted, Mr O'Brien was a victim of the global financial6 Darby v Official Assignee [2013] NZHC 22 at 14.7 Re Peters, exparte Marac Finance Limited [2014] NZHC 1755.8 Re Kelly, exparte Structured Finance Limited [2009] 2 NZLR 785 at [63].crisis which resulted in his property development enterprise failing. He was not the only property developer who failed as a result of that development.[43] Mr Andrew Smith, put forward the contention that Mr O'Brien was acommercially unsophisticated man who had not really appreciated what obligations an undischarged bankrupt was subject to in relation to taking part in the business. He had not been guilty of any sharp practice or dishonesty during his bankruptcy.[44] I have already considered this argument when commenting on the evidenceof Mr O'Brien and I do not consider that any further reference needs to be made toit.Discussion[45] I agree with the submission that Mr Smith made that little guidance can be found in the circumstances in which Mr O'Brien became bankrupt as to his conduct, character and attributes.[46] I do not agree with the argument though that Mr O'Brien was essentiallynaive. I consider that the Official Assignee made it plain to Mr O'Brien that heought not to commence a business or take part in the running of the business. IfMr O'Brien had been in any doubt about the matter, he could always have revertedto the Official Assignee to obtain comment on the detailed proposal which he had and to get the views of the Official Assignee as to whether or not that appeared to be in contravention of s 149. Instead of doing that, Mr O'Brien came to an erroneousjudgement/judgments about what might lie within or without s 149 and conducted his business accordingly even though he knew that there are uncertainties about his position and that there were grey areas about which he could not be entirely sure.[47] Further, in adopting technical devices which he considered took his particular case outside the prohibition against being in business, Mr O'Brien showed poorjudgement. He did not obtain legal advice and is not himself a lawyer. Even if he is to be believed when he says that he did not contravene the section deliberately, he did so as a result of taking a risk that he might be wrong when he set aboutstructuring the business as it did and thereafter operating it. He is not therefore blameless as his counsel states he is.[48] Further, the nondisclosure of the O'Brien Property Management bankaccount reflected a wish on the part of Mr O'Brien to ensure that profits that hemade from running the business would not be made available to creditors as they ought to have been.[49] The Official Assignee does not suggest that the Court ought to approachMr O'Brien's application with a view to declining it in order to add to thepunishment that Mr O'Brien has undergone. The relevance of his conduct is that itcasts light upon one of the central questions that the Court is required to consider when dealing with an application for discharge, namely, the risk that the bankrupt poses to the community.[50] In my view it is not possible to view Mr O'Brien's deviousness and his dealings with the Official Assignee as compartmentalised in such a way that it ought not to be seen as indicative of his approach to his obligations to creditors generally.I consider that the behaviour which Mr O'Brien exhibited, in the absence of anyevidence that he has made changes to his outlook, mean that he is likely in future to act in disregard of his legal obligations an order to protect his own personal financial interests.[51] I consider that Mr O'Brien does pose a future risk to the community. Such arisk could derive from generally lax management and poor business judgment.[52] The inability on the part of Mr O'Brien to acknowledge that he in fact breached the law is of concern. His tendency to blame other people including the Official Assignee, the probation officer who prepared the report and others does not paint the picture of someone who has turned over a new leaf. He does not seem to be given to reflection on his own shortcomings or the need to make changes.[53] This leads to the next issue, though, which is whether the degree of risk thatMr O'Brien poses is such that the court should decline his application for discharge.In deciding that question, the Court must observe the requirements of proportionality. It is to be inferred that continuation of the bankruptcy in the case ofMr O'Brien who is now aged 65 years and not in good heart financially, will cause hardship to him. Given Mr O'Brien's background, he is unlikely to be viewed as anattractive candidate for employment. But there is also to be considered the possibility is that the Court while granting a discharge can attach conditions to it to mitigate the risk that Mr O'Brien poses.[54] The interests of the bankrupt are legitimate matters to take into account when considering an application of this kind also point to the need for a discharge. Thebusiness that Mr O'Brien would go into if he was permitted to is again in the property management area. However on this occasion, the business plan that he has prepared indicates that he would be in the business of providing advice to those who have an interest in purchasing residential property for investment purposes. He said that his strengths would lie in the area of knowing who to deal with at the Council, advising on the best way of utilising the value of the property and assisting investors to locate appropriate tradespeople and advise them on the contract with such persons.Mr O'Brien does not envisage that his business would involve him in holding money on trust for clients. Of course, if Mr O'Brien were to be discharged unconditionallyfrom bankruptcy neither the Official Assignee nor the Court would be in the positionof holding Mr O'Brien to such a statement of intent.[55] Then there is the issue of accountability. In my view that concept in the context of a discharge from bankruptcy is linked to the requirement of deterrence. The law ought to be administered in such a way to make it clear to the bankrupt and members of the community more widely that breaches of obligations of the kind thathave occurred here, will lead to detrimental consequences. Mr O'Brien has fallenbelow the required standard during his bankruptcy. All else being equal, consequences are called for. The only meaningful consequence which the Court can attach is extending his bankruptcy by declining to grant a discharge. But in considering that issue, the Court needs to consider the other matters that I have already referred to including the concern that by declining or postponing a discharge, the Court will be disproportionately extending the length of his bankruptcy which asI have noted will be the equivalent of twice the statutory minimum period if the bankruptcy continues through to December of this year.[56] I have given consideration to whether Mr O'Brien should be discharged onthe basis that a condition ought to be attached preventing him from carrying on his own business.[57] The Court has power under s 299 to restrict a bankrupt from engaging in business after discharge without the Court's consent. The statutory provision movesthe power to approve of the participation by a discharged bankrupt on business from the Official Assignee to the Court, once a discharge has been granted.9 If the condition were to be imposed under that section, it would have the effect until the Court determined to vary or cancel the condition. That would probably require a further application to be made to the Court which would take time and, perhaps moreimportantly, involve Mr O'Brien in outlaying funds for additional legal help. It isobvious that Mr O'Brien has little money that could be expended in that area.[58] I do not consider that making an order under s 299 would represent a just outcome in the circumstances of this case.[59] On balance, I consider that the only realistic and practical outcome is for thecourt to grant Mr O'Brien a discharge from 13th of December 2016 without conditions and there will be an order accordingly. By the time that date is reached, I consider any justification for continuing the bankruptcy will have expired._____________J.P. DoogueAssociate Judge9 Counsel for the Official Assignee, Mr Tran, has referred me to the contrary conclusion reached in Re Donovan, ex parte Commissioner of Inland Revenue [2013] NZHC 2936. I note however that the point was not argued in that case.