BROWN V COMMISSIONER OF INLAND REVENUE COA CA127/2011
The appeal was struck out because the appellant failed to pay security for costs fixed by the Registrar and did not apply for reduction or dispensation under the Rules; in the exercise of discretion the Court declined to award costs given the appellant's bankruptcy and substantial indebtedness to Inland Revenue.
Source-derived case information.
- Citation
- COA CA127/2011
- Parties
- Appellant: Thomas Joseph Brown; Respondent: Commissioner of Inland Revenue
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 24 June 2011
- Procedural Posture
- Civil Appeal / Strike Out Application; Appeal Struck Out
- Outcome
- Appeal struck out
- Legal Topics
- Security for Costs, Strike Out, Abandonment of Appeal, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Joseph Brown
Appellant
Commissioner of Inland Revenue
Respondent
Procedural Posture
Civil Appeal / Strike Out Application; Appeal Struck Out
Legal Issues
- 1 Failure to pay security for costs as fixed by the Registrar under the Court of Appeal (Civil) Rules 2005
- 2 Whether the appeal should be struck out for non‑compliance and absence of formal abandonment
- 3 Whether costs should be awarded given the appellant's bankruptcy and debt to Inland Revenue
Ratio Decidendi
The appeal was struck out because the appellant failed to pay security for costs fixed by the Registrar and did not apply for reduction or dispensation under the Rules; in the exercise of discretion the Court declined to award costs given the appellant's bankruptcy and substantial indebtedness to Inland Revenue.
Court Disposition
Appeal struck out
Orders
- Appeal struck out
- No order for costs
Full Case Text
Judgment text and source record
1 paragraphs
BROWN V COMMISSIONER OF INLAND REVENUE COA CA127/2011 24 June 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA127/2011[2011] NZCA 293BETWEEN THOMAS JOSEPH BROWNAppellantAND COMMISSIONER OF INLANDREVENUERespondentCourt: Chambers, Ellen France and Stevens JJCounsel: Appellant in personP W O'Regan for RespondentJudgment: 24 June 2011 at 12:00 PMJUDMGENT OF THE COURTThe appeal is struck out.REASONS OF THE COURT(Given by Chambers J)[1] Thomas Brown, the appellant, filed a notice of appeal on 9 March 2011. The Registrar fixed security for costs in the sum of $5,560. Mr Brown was required to pay security by 6 April 2011, but did not do so by that date or subsequently. He did not apply to the Registrar under r 35(6) of the Court of Appeal (Civil) Rules 2005 for a reduction in or dispensation with security.[2] The Commissioner of Inland Revenue, the respondent, filed an application to strike out the appeal for failure to pay security for costs. Mr Brown then decided to abandon his appeal.[3] He refused to file a formal abandonment under r 44. That leaves us with noalternative but to strike out the appeal on the Commissioner's application.[4] The Commissioner sought costs. We have decided not to make any order for costs. Mr Brown is bankrupt, and owes Inland Revenue more than three quarters of a million dollars. The Commissioner had to do little work on the appeal. He did have to file the application to strike out, but no appearance on that application wasrequired. It seems rather pointless to increase Mr Brown's indebtedness to InlandRevenue in the circumstances.Solicitors:Crown Law Office, Wellington for Respondent