Dunphy v Commissioner of Inland Revenue HC Wellington CIV-2009-485-000733

[2011] NZHC 693

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-000733

UNDER

Part I of the Judicature Amendment Act

1972

BETWEEN

MALCOLM FRANCIS DUNPHY First Applicant

AND

DAVID JOHN GRIEVE Second Applicant

AND

RICHARD SCOTT GROCOTT Third Applicant

AND

ROBERT CHARLES MAXWELL Fourth Applicant

AND

FRANCIS JAMES H OXLEY Fifth Applicant

AND

DAVID MILLS SIMPSON Sixth Applicant

AND

JOHN NEVILLE SIMPSON Seventh Applicant

AND

MARY SCHUMACHER Eighth Applicant

AND

COMMISSIONER OF INLAND REVENUE

Respondent

Hearing:

Dealt with on the papers

Judgment:

11 July 2011

JUDGMENT OF CHISHOLM J

DUNPHY V COMMISSIONER OF INLAND REVENUE HC WN CIV-2009-485-000733 11 July 2011

[1]      On 28 April 2011 the applications for judicial review by the first, seventh and eighth applicants were granted and the Commissioner was directed to reconsider their applications for tax refunds on the strength of Peterson v Commissioner of Inland Revenue.[1]   Given that judgment it was anticipated that the claims for refunds by other applicants would be resolved between the various applicants and the Commissioner.     Leave  was  reserved  to  any  party  to  apply  further  “should clarification of any of these orders be required”.[2]

[1] Peterson v Commissioner of Inland Revenue [2006] 3 NZLR 433 PC

[2] At [113]

[2]      In a memorandum dated 18 May 2011, Mr Hartley, counsel for the applicants, advises that except for the claim of the fourth applicant the claims of all the other applicants have now been resolved.   However, in the case of the fourth applicant, Robert Maxwell, two orders are sought:   first an order amending the statement of claim; secondly, if the amendment to the statement of claim is permitted, an order directing the Commissioner to reconsider the fourth applicant’s application in light of the amendment to the statement of claim.

[3]      These applications are made on the basis that in the amended statement of claim (the current pleading) Appendix 4 pleads that Robert Maxwell had invested the sum of $20,000 in the film Utu whereas the actual amount was $40,000.  It is noted that the correct amount was included in the initial statement of claim.  The basis of the claim for the additional $20,000 is outlined in the memorandum.

[4]     In his memorandum of 27 May 2011 Mr Ebersohn, counsel for the Commissioner, strongly opposes the application. Amongst other things he relies on a settlement  deed  dated  15  December  2010  which  purports  to  settle  all  matters between  Mr  Maxwell  and  the  Commissioner  in  relation  to  this  proceeding. Mr Ebersohn also raises various other grounds of opposition, including whether the present application comes within the leave to apply further reserved in the earlier judgment.

[5]      Given the time that has passed since Mr Ebersohn’s memorandum was filed, I

assume that the applicant does not intend to file any further documentation.

[6]      Assuming for the moment that there is jurisdiction to grant leave for the fourth applicant’s pleading to be amended at this late stage, I am not prepared to grant leave.  The proposed amendment is not within the scope of the “clarification” leave reserved to the parties in the substantive judgment.   More importantly, the parties appear to have settled all matters in relation to this proceeding.

[7]      The application is dismissed.  There will be an order for costs on the 2B scale against the fourth applicant in favour of the respondent.

Solicitors:

Peterson Law Ltd P O Box 342, Wellington

Crown Law office, P O Box 2858, Wellington