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Redcliffe Forestry Venture Limited & Others v/s The Commissioner Of Inland Revenue


Company & Directors' Information:- B B VENTURE PRIVATE LIMITED [Active] CIN = U52209CT2008PTC020645

Company & Directors' Information:- S A R VENTURE PRIVATE LIMITED [Active] CIN = U70102DL2015PTC275704

Company & Directors' Information:- A K G FORESTRY LIMITED [Strike Off] CIN = U01111DL1996PLC081349

Company & Directors' Information:- R D FORESTRY PRIVATE LIMITED [Strike Off] CIN = U20221UP1998PTC023135

Company & Directors' Information:- N J VENTURE PRIVATE LIMITED [Strike Off] CIN = U70101MH2008PTC186387

Company & Directors' Information:- INLAND CORPORATION PRIVATE LIMITED [Dissolved] CIN = U99999TN1955PTC000997

    CA No. 818 of 2009

    Decided On, 18 October 2013

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE STEVENS
    By, THE HONOURABLE MR. JUSTICE WILD & THE HONOURABLE MR. JUSTICE MILLER

    For the Appellant: A4, A5, A7, A8, R B Stewart QC, A1, A3, A6, M S Hinde, Advocates. For the Respondent: R L Roff, Advocate.



Judgment Text

Stevens, J.

[1] The Commissioner of Inland Revenue (the Commissioner) has sought costs in the abandoned appeal in CA818/2009 against the appellants (to whom we will collectively refer as Redcliffe). The parties have resolved the question of costs in two related appeals (CA204/2010 and CA69/2011) which were also abandoned. We have considered the various submissions and memoranda filed by the appellants and the Commissioner in respect of the remaining costs claim.[1]

Background

[2] The context to the abandoned appeal is this. In September 2009, Redcliffe filed a statement of claim in the High Court seeking an order setting aside a 20 December 2004 decision of Venning J.[2] Lang J, the Civil List Judge, assigned the setting aside proceeding to Venning J. Redcliffe applied to have that administrative decision of Lang J reviewed on the basis of the 'prior involvement' principle. In a decision delivered on 2 December 2009, Venning J declined to review the administrative decision, noting that there was no principled basis for objection to his assignment.[3] It was from this 2 December decision that Redcliffe appealed in CA818/2009.

[3] The appeal was scheduled to be heard from 27–30 June 2011. There were three other appeals which were to be heard at the same time. Two of these were abandoned at the same time as CA818/2009.[4] The third appeal, CA152/2010, was successful in this Court.[5] However, this Court’s judgment was appealed by the Commissioner to the Supreme Court, and was overturned in that Court.[6]

[4] The chronology of relevant events is as follows:

Date

Event

September 2009

Redcliffe issues proceeding to set aside the 20 December 2004 decision of Venning J (the setting aside proceeding).

2 December 2009

Venning J declines review of the administrative decision to assign the setting aside proceeding to him.

23 December 2009

Redcliffe files notice of appeal in this Court in respect of the 2 December 2009 decision (CA818/2009).

26 February 2010

Venning J dismisses Redcliffe’s setting aside proceeding for want of jurisdiction.[7]

23 March 2010

Redcliffe files notice of appeal against 26 February 2010 decision of Venning J (CA152/2010).

31 May 2010

Complaints about Venning J made by some of the appellants to the Judicial Conduct Commissioner.

9 November 2010

Parties agree a timetable to file submissions on all appeals.[8] Redcliffe to file by 30 May 2011, Commissioner to file by 13 June 2011.

17 March 2011

By minute, Venning J recuses himself from dealing further with the setting aside proceeding.

20 April 2011

Redcliffe seeks an indefinite adjournment for all appeals until after the release of the Judicial Conduct Commissioner’s decision regarding Venning J.

12 May 2011

By minute, Arnold J declines to grant the adjournment.

30 May 2011

Redcliffe’s submissions due pursuant to timetable agreed in joint memorandum dated 9 November 2010.

31 May 2011[9]

Redcliffe files a notice of discontinuance in respect of CA818/2009, and also in respect of CA204/2010 and CA69/2011. Only CA152/2010 remained ongoing.

2 February 2012

Commissioner files memorandum regarding costs of abandoned appeals.

17 February 2012

Redcliffe files memorandum seeking direction that costs in respect of CA204/2010 and CA69/2011 not be fixed until the Supreme Court had determined the Commissioner’s appeal in CA152/2010.

27 February 2012

Commissioner files further memorandum regarding costs of abandoned appeals – Commissioner saw no justification for delaying the fixing of costs.

2 March 2012

Redcliffe files two memoranda: one asked that costs in CA818/2009 also be deferred, and the other explained why costs in the abandoned appeals should not be determined until the Supreme Court had heard the appeal in CA152/2010.

29 June 2012

Commissioner files submissions on costs seeking indemnity costs and, if not, increased costs on all three of the abandoned appeals.

20 July 2012

Parties file joint memorandum advising that the parties have reached agreement on costs in CA204/2010 and CA69/2011. The Commissioner’s claim for costs in CA818/2009 remained unresolved.

20 July 2012

Redcliffe files memorandum submitting there should be no order for costs in CA818/2009.

13 August 2012

Commissioner files memorandum in reply to Redcliffe’s 20 July 2012 memorandum.

1 May 2013

Redcliffe files memorandum in reply to the Commissioner’s 13 August 2012 memorandum.

Submissions

[5] For the Commissioner, Ms Roff claims indemnity costs in relation to CA818/2009 on the basis that it was objectively obvious to Redcliffe that they were acting vexatiously, improperly and unnecessarily.[10] In summary, the Commissioner relies on the following grounds:

(a) Each of the five categories endorsed by this Court in Bradbury v Westpac Banking Corp was engaged.[11]

(b) The appeal is an example of the taxpayers’ wider strategy to a collateral attack on the Supreme Court’s decision in Ben Nevis.[12] The purpose of such an attack is to delay finalisation of the taxpayers’ affairs for as long as possible.

(c) The appeal was plainly hopeless.

(d) Redcliffe’s conduct in abandoning the appeal at such a late stage resulted in a waste of the Court’s and the Commissioner’s time and resources. The Commissioner had already prepared extensive submissions when the appeal was abandoned, bearing in mind that the Commissioner’s submissions were due on 13 June 2013.

[6] In the event that the Court is not minded to award costs on an indemnity basis, the Commissioner seeks increased costs on the basis that Redcliffe contributed unnecessarily to the time and expense of the appeal by taking and pursuing unmeritorious arguments without reasonable justification.[13] The Commissioner relies on the same grounds as outlined above at [5]. The Commissioner also relies on the decision of this Court in Holdfast NZ Ltd v Sel[14]ys Pty Ltd14 where it was held that an uplift of 50 per cent on scale costs would generally be sufficient for fair recovery, but that 'there may be circumstances where the Court considers a higher award to be justi[15]ed.'15 The Commissioner submits that an uplift of at least 75 per cent is appropriate in this case to reflect the failure of Redcliffe to act reasonably in light of the unmeritorious and vexatious nature of the appeal.

[7] Redcliffe submits that, given the circumstances, particularly the Judge’s recusal which led to the abandonment, costs should lie where they fall. It was not the actions of Redcliffe which led to the appeal being discontinued, but the issue of the Judge’s minute of 17 March 2011. Redcliffe acted reasonably in issuing the proceeding, and acted equally reasonably in discontinuing it.

Our evaluation

[8] We are not persuaded that indemnity costs are appropriate in this appeal. In our view, the grounds set out in Bradbury for indemnity costs are not made out.[16]

[9] However we consider that an award of increased costs is justified. We consider that the appropriate award is costs for a standard appeal on a band A basis uplifted by 50 per cent. We apply the approach of this Court in Holdfast that such an increase would generally be sufficient for fair recovery where an award of higher costs than scale is justified. We see no justification for a greater uplift.

[10] We consider that the application made in the High Court effectively to have Venning J recuse himself from dealing with the setting aside proceeding should never have been made. Counsel for Redcliffe submitted to Venning J that there were three situations in which a Judge would be unable to hear a case on the basis of a 'prior involvement' principle. As Venning J held, the first two situations did not apply to this case.[17] The third situation in which Redcliffe said this principle operated was where a Judge was hearing a fresh proceeding asserting that the earlier decision should be set aside based on a false case. The authority relied on for this proposition was Kuwait Airways Corp v Iraqi Airways Corp.[18] Mr Forbes QC for some of the Redcliffe appellants conceded in a telephone conference with Venning J that that case did not stand for such a principle.[19] Accordingly, there was no basis for review of Lang J’s decision based on the prior involvement principle. Mr Stewart QC for some of the Redcliffe appellants advanced an argument that Redcliffe may have a feeling of pre-determination because of Venning J’s previous adverse decisions against them. However, as Venning J pointed out, those decisions simply reflected the Judge’s compliance with his duty to decide cases in compliance with the law. They did not give rise to a reasonable apprehension of bias.[20]

[11] We are satisfied that the application for review of the administrative decision was unmeritorious. The appeal in CA818/2009 should never have been brought.

[12] There is thus no merit in Redcliffe’s point that it abandoned the appeal in a timely way when Venning J recused himself. In any event, it is clear that Venning J did not recuse himself for the reasons that Redcliffe has submitted he should do so. Rather, he recused himself due to the actions of Redcliffe in making allegations against him. As the Judge’s minute of 17 March 2011 said:

[3] Given the extreme and personal nature of the allegations made against me by the complainants which are now before the Judicial [Conduct] Commissioner I have determined it would be inappropriate for me to deal further with this file.

[13] Even if there were merit in the appeal, Redcliffe waited a month and a half after the issuing of Venning J’s recusal minute to abandon the appeal. The appeal was abandoned the day after Redcliffe’s submissions were due, and then only after a misconceived application for adjournment had been declined by Arnold J. Thus the Commissioner had already put time and resources into preparing for a meritless appeal, and should be compensated for this.

[14] We accept that the Commissioner’s counsel will have incurred considerable costs up to the point of the abandonment. From the material before us we are unable to determine what costs were incurred by the Commissioner in relation to CA818/2009. Hence we make a default direction that the parties are to endeavour to agree on a reasonable time for each step required in this appeal as provided by r 53D.[21] If agreement cannot be reached, the parties are to file a joint memorandum of no more than three pages in length setting out the steps taken, the time taken for each step, those steps on which the parties agree, and those steps on which the parties do not agree, with reasons given for the disagreement. That memorandum must be filed within fifteen working days from the date of this judgment.

Result

[15] The appellants jointly and severally must pay the respondent costs for a standard appeal on a band A basis and usual disbursements. The costs component is to be uplifted by 50 per cent.

[16] We direct the Registry to pay that sum out to the Commissioner from the security for costs held. Any balance of the security for costs held is to be paid out to Wynyard Wood, the appellants’ solicitors.

1. In particular the Commissioner’s memoranda of 29 June and 13 August 2012 and Redcliffe’s memoranda of 20 July 2012 and 1 May 2013.

2. Accent Management Ltd v Commissioner of Inland Revenue (2005) 22 NZTC 19,027 (HC).

3. Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue (2010) 24 NZTC 23,991 (HC) [Review decision].

4. CA204/2010 and CA69/2011.

5. Redcliffe Forestry Venture Ltd v Commissione

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r of Inland Revenue [2011] NZCA 638, [2012] 2 NZLR 823. 6. Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804. 7. Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2011] 1 NZLR 336 (HC). 8. Except CA69/2011. By minute issued on 12 May 2011 Arnold J decided that the CA69/2011 appeal would be heard at the same time as the other three. 9. This is the date on the notices of abandonment. Notices of result sent by the Court were dated 7 June 2011. 10. Court of Appeal (Civil) Rules 2005, r 53E(3)(a). 11. Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [29]. 12. Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2008] NZSC 115, [2009] 2 NZLR 289. 13. Court of Appeal (Civil) Rules, r 53E(2)(b)(ii) and (iii). 14. Holdfast NZ Ltd v Selleys Pty Ltd [2005] NZCA 302; (2005) 17 PRNZ 897 (CA). See also Bradbury v Westpac Banking Corporation at [27]. 15. At [47]–[48]. 16. Bradbury, above n 11. 17. Review decision, above n 3, at [15]. 18. Kuwait Airways Corp v Iraqi Airways Corp [2003] EWHC 31 (Comm), [2003] 1 Lloyd’s Rep 448. 19. At [28]. 20. At [32]. 21. See also Holdfast, above n 15, at [44].
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