W P WITHEY LIMITED V COMMISSIONER OF INLAND REVENUE CA CA88/97
The appeal was struck out because it had been filed in 1997 and no steps were taken to prosecute it, the delay was gross and inordinate, the interlocutory appeal was rendered ineffective by the subsequent substantive hearing, and the appellant offered no adequate explanation or appearance.
Source-derived case information.
- Citation
- openlaw-f61216bc_53af_4d91_98ef_ada78e35712d.pdf
- Parties
- Appellant: W P Withey Limited; Respondent: Commissioner of Inland Revenue
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 19 July 2004
- Procedural Posture
- Interlocutory Appeal / Application to Strike Out for Want of Prosecution
- Outcome
- Appeal struck out for want of prosecution
- Legal Topics
- Want of Prosecution, Delay, Interlocutory Appeal, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
W P Withey Limited
Appellant
Commissioner of Inland Revenue
Respondent
Procedural Posture
Interlocutory Appeal / Application to Strike Out for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be struck out for want of prosecution
- 2 Whether an interlocutory appeal retains efficacy after the substantive proceedings have been heard
- 3 Whether an adjournment should be granted and what costs order is appropriate
Ratio Decidendi
The appeal was struck out because it had been filed in 1997 and no steps were taken to prosecute it, the delay was gross and inordinate, the interlocutory appeal was rendered ineffective by the subsequent substantive hearing, and the appellant offered no adequate explanation or appearance.
Court Disposition
Appeal struck out for want of prosecution
Orders
- Appeal struck out for want of prosecution
- Costs awarded to respondent in the sum of $1,500 and disbursements to the respondent
Full Case Text
Judgment text and source record
1 paragraphs
W P WITHEY LIMITED V COMMISSIONER OF INLAND REVENUE CA CA88/97 19 July 2004IN THE COURT OF APPEAL OF NEW ZEALAND CA88/97BETWEEN W P WITHEY LIMITED Appellant AND COMMISSIONER OF INLAND REVENUE Respondent Hearing: 19 July 2004 Coram: Anderson P Glazebrook J Hammond J Appearances: No appearance for Appellant N Malarao for Respondent Judgment: 19 July 2004JUDGMENT OF THE COURT DELIVERED BY ANDERSON P[1] This is an application by the respondent to strike out an appeal for want of prosecution. The appeal was filed in 1997. It was an appeal against an interlocutory order of the High Court, made on 3 March 1997, directing that Case Stated appeals of the appellant and assorted shareholders be heard in the High Court. Those cases were heard substantively later in 1997. No steps were taken to bring the appeal on for hearing. There would in any event seem to be no efficacy in an interlocutory appeal when the substantive proceedings have been heard. The appellant's delay is plainly gross and inordinate. [2] We note that learning of the impending hearing of the respondent's application Mr J G Russell, on behalf of the appellant, sought an adjournment which the President refused to grant. The delay was so manifestly unacceptable and theappeal so manifestly wanting in merit that any adjournment would simply delay the inevitable. [3] The appeal is accordingly struck out for want of prosecution with costs of $1,500 and disbursements to the respondent.Solicitors: Crown Solicitors, Auckland for Respondent