Apatu v Mauger - [2012] NZHC 3270

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2011-441-832 [2012] NZHC 3270

IN THE MATTER OF the Insolvency Act 2006

AND

IN THE MATTER OF the bankruptcy of WINIPERE EVA MAUGER

BETWEEN KENNETH TAMA TE KAPUA APATU First Judgment Creditor

ANDNATHAN WIRIHANA APATU, RENATA ROBIN APATU AND KATHERINE LOUISE BATES AS EXECUTORS OF THE ESTATE OF WIRIHANA TERRENCE APATU
Second Judgment Creditors

Hearing: 15 November 2012 (Heard at Napier)

Counsel: N. Gray - Counsel for Judgment Creditor
D. O'Connor - Counsel for Judgment Debtor

Judgment: 6 December 2012

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 3.30 pm on 6 December 2012.

Solicitors: Sainsbury Logan & Williams, Solicitors, PO Box 41, Napier
Lunn & Associates, Solicitors, PO Box 846, Napier

KTTK APATU & ORS v WE MAUGER HC NAP CIV-2011-441-832 [6 December 2012]

Introduction

[1] This is an application by various judgment creditors (who are her relatives) to adjudicate the judgment debtor Ms Winipere Mauger (the debtor) bankrupt. The bankruptcy application is based on a judgment debt of $85,000.00, which represents a costs award made in this Court on 3 November 2011 against the judgment debtor and her brother, Mr Ashley Apatu (Ashley).

[2] The costs award was made following proceedings in which the debtor and Ashley were unsuccessful plaintiffs in a claim against four other family members: Mr Kenneth Apatu, a brother of the debtor, Mr Nathan Apatu and Mr Renata Apatu, the debtor’s nephews, and Ms Katherine Bates, the debtor’s niece. I will collectively refer to this group as “the creditors”.

[3] Over the last year, the creditors have sought to enforce payment of the costs award, which has so far proven unsuccessful. They have successfully applied to bankrupt Ashley, and now bring the present application to bankrupt the debtor for the outstanding debt. No part of the outstanding $85,000.00 debt has been paid.

Background

[4] The debtor is now aged 80 and resides in a retirement village in Napier. On

26 September 2007, before she became involved in the legal action the subject of the costs award, the debtor was involved in a high-speed car accident, during which she sustained a severe head injury by hitting her head on the steering wheel of the car. That event has significance to this application which will later be explained.

[5] The litigation which gave rise to the costs award involved Ashley and the debtor bringing proceedings against the creditors alleging breaches of trust in the performance of their duties as executors of a family estate.1 As a consequence of finding against Ashley and the debtor as plaintiffs on the substantive issues, Williams
J in this Court ordered them to pay the creditors costs of $85,000.00 (the judgment

1 The substantive issues of those proceedings are not relevant to the present application but were determined in Apatu v Apatu, HC Napier CIV-2009-441-515, 10 May 2011.

to two-thirds on a category 2B scale basis.3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Apatu v Mauger

Details

AGLC: Apatu v Mauger [2012] NZHC 3270
Case: [2012] NZHC 3270
Decision Date: 6 December 2012

CaseChat Overview and Summary

The case of Apatu v Mauger involved an application by various judgment creditors to adjudicate the judgment debtor, Ms Winipere Mauger, bankrupt based on a judgment debt of $85,000. The creditors were relatives of the debtor and had previously succeeded in having the debtor’s brother, Mr Ashley Apatu, adjudicated bankrupt. The creditors sought to bankrupt Ms Mauger due to her failure to pay the costs award made against her and her brother in a previous litigation involving family members. Ms Mauger opposed the application on the grounds that it would be oppressive and unjust to adjudicate her bankrupt given her cognitive impairment from a head injury and her limited involvement in the litigation. The court was required to decide whether it would be just and equitable to refuse the adjudication application under section 37(c) of the Insolvency Act 2006.

The court found that while the circumstances surrounding the debt were unusual and the debtor's cognitive impairment may have impaired her decision-making capabilities, the creditors were innocent parties who simply wanted to be paid. The court also found that the debtor might be able to pay her debts given a reasonable period of time. However, the court concluded that refusing the adjudication application would be the most just and equitable result given the debtor's age, health condition, and the familial nature of the dispute. The court dismissed the adjudication application and made no order as to costs.

Orders