CHESTERFIELDS PRESCHOOLS LIMITED (IN LIQUIDATION) v THE COMMISSIONER OF INLAND REVENUE [2017] NZSC 176
The conditional order of the Court of Appeal was quashed because it rested on an incorrect assumption that the first appellant had cash available to satisfy the condition; the Supreme Court replaced it with an unconditional order setting aside the liquidation order and remitting the proceeding to the High Court for...
Source-derived case information.
- Citation
- [2017] NZSC 176
- Parties
- First Appellant: Chesterfields Preschools Limited (In Liquidation); Second Appellant: Therese Anne Sisson; Respondent: The Commissioner of Inland Revenue
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 23 November 2017
- Procedural Posture
- Appeal / Final Judgment
- Outcome
- Appeal allowed; the Court of Appeal's conditional order is quashed and replaced with an unconditional order setting aside the High Court order putting the first appellant into liquidation and remitting the proceeding to the High Court for rehearing; no order as to costs.
- Legal Topics
- Liquidation, Conditional Order, Remission for Rehearing, Leave to Appeal, Judicial Consent to Paper Disposal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chesterfields Preschools Limited (In Liquidation)
First Appellant
Therese Anne Sisson
Second Appellant
The Commissioner of Inland Revenue
Respondent
Procedural Posture
Appeal / Final Judgment
Legal Issues
- 1 Whether the conditional order of the Court of Appeal setting aside the High Court order putting the first appellant into liquidation should be quashed and replaced with an unconditional order because the condition could not be satisfied
- 2 Whether a condition attached to an appellate remittal may be discharged when based on an incorrect factual assumption
Ratio Decidendi
The conditional order of the Court of Appeal was quashed because it rested on an incorrect assumption that the first appellant had cash available to satisfy the condition; the Supreme Court replaced it with an unconditional order setting aside the liquidation order and remitting the proceeding to the High Court for rehearing.
Court Disposition
Appeal allowed; the Court of Appeal's conditional order is quashed and replaced with an unconditional order setting aside the High Court order putting the first appellant into liquidation and remitting the proceeding to the High Court for rehearing; no order as to costs.
Orders
- Allow appeal.
- Quash the Court of Appeal order that set aside the High Court order subject to a payment condition and replace it with an unconditional order setting aside the High Court order putting the first appellant into liquidation and remitting the proceeding to the High Court for rehearing.
Full Case Text
Judgment text and source record
1 paragraphs
CHESTERFIELDS PRESCHOOLS LIMITED (IN LIQUIDATION) v THE COMMISSIONER OF INLANDREVENUE [2017] NZSC 176 [23 November 2017]IN THE SUPREME COURT OF NEW ZEALANDSC 91/2017[2017] NZSC 176BETWEEN CHESTERFIELDS PRESCHOOLSLIMITED (IN LIQUIDATION)First AppellantTHERESE ANNE SISSONSecond AppellantAND THE COMMISSIONER OF INLANDREVENUERespondentCourt: Elias CJ, William Young, Glazebrook, OʼRegan andEllen France JJCounsel: Second Appellant in personP J Shamy and S M Kinsler for RespondentJudgment: 23 November 2017JUDGMENT OF THE COURTA The appeal is allowed.B The order made by the Court of Appeal setting aside theorder of the High Court putting the first appellant intoliquidation and remitting the proceeding to the High Courtfor rehearing, subject to the condition that within 15working days of the Court of Appeal judgment, the secondappellant pay into the High Court at Christchurch theamount of $109,675.22, is quashed.C In its place we make an order setting aside the orderputting the first appellant into liquidation and remittingthe proceeding to the High Court for rehearing.D There is no order as to costs.____________________________________________________________________REASONS[1] On 16 November 2017, leave to appeal was granted on a single ground.1 Theapproved question was: whether the conditional order of the Court of Appeal setting aside the orderof the High Court putting the first applicant into liquidation and remitting theproceeding to the High Court for rehearing should be quashed and replacedwith an unconditional order.[2] In the reasons for judgment, it was noted that the condition imposed by theCourt of Appeal was imposed on the assumption that the first appellant had cashavailable to satisfy the condition but, as it transpired, that had proved to be incorrectand it had not been feasible for the condition to be satisfied.2 The respondent acceptedthat leave should be given on this point and the consequent appeal should be allowedso that the condition was discharged. That would mean no condition attached to theCourt of Appeal's order. The proceeding would then be remitted to the High Court fora rehearing on the issue as to whether the first appellant should be placed inliquidation.[3] We set a fixture for the hearing of the appeal, but noted that this could bedispensed with if the parties consented to the appeal being dealt with on the papers.3The parties have advised that they consent to the appeal being dealt with on the papers.[4] We are satisfied that the condition imposed by the Court of Appeal was basedon an assumption that has proven to be incorrect and that it should be discharged. Wetherefore allow the appeal by consent and make the orders set out above.1 Chesterfields Preschools Ltd (in liq) v Commissioner of Inland Revenue [2017] NZSC 168.2 At [3].3 At [5]–[6].[5] No costs were awarded in relation to the leave application, given that eachparty had a measure of success. As this judgment is based on the parties' agreedposition, we take the same approach in this judgment.Solicitors:Crown Law Office, Wellington for Respondent