AHS Construction Limited fta Advanced Housing Systems NZ Limited v Andrews

In the High Court of New Zealand, AHS Construction Limited, formerly trading as Advanced Housing Systems NZ Limited, applied for leave to issue a charging order before judgment against the Andrews, who are permanent residents of the Gold Coast, Australia. The application arose from an oral agreement between AHS and the Andrews for the preparation of a housing platform on the Andrews' property in Pahoia. The dispute centred on the respondents' failure to pay for the work completed by AHS, leading to the applicant's application for a charging order to secure the respondents' property before judgment.

The legal issues before the Court included whether the applicant had satisfied the requirements under r 17.41 of the High Court Rules 2016 for leave to issue a charging order. This required the applicant to prove that the liable party intended to defeat creditors by removing, concealing, or disposing of property or by leaving New Zealand. The Court examined whether the Andrews' act of liquidating their sole asset in New Zealand without making provision for AHS's claim evidenced the requisite intent.

The Court found that the Andrews' intent to defeat creditors was established by their actions of selling the property and refusing to confirm they would retain sufficient proceeds to meet any judgment against them. Given that the Andrews had no other property in New Zealand and were liquidating their sole asset, the Court concluded that the applicant had demonstrated the necessary intent under r 17.41(b). The Court further held that the sale of the property would prejudice AHS if it succeeded in its claim, as it would necessitate registering the judgment in Queensland and pursuing enforcement there. The Court granted leave for AHS to issue a charging order over the Andrews' property in Pahoia.

The final orders granted leave to AHS to issue a charging order over the estate, right, title, or interest of Danny and Glenda Andrews in Lot 1, 333 Pahoia Road, Pahoia, to secure the amount of $99,358.96, which was the sum for which AHS may obtain judgment. The Andrews were granted leave to apply to the Court on three days’ notice.