Attorney-General v Payne - [2013] NZHC 55

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2004-485-1723 [2013] NZHC 55

IN THE MATTER OF the Insolvency Act 1967

AND

IN THE MATTER OF the bankruptcy of ROGER JOHN PAYNE

BETWEEN THE ATTORNEY-GENERAL Judgment Creditor

ANDROGER JOHN PAYNE Judgment Debtor

Hearing: 4 February 2013 (Heard at Wellington)

Counsel: D.M. Consedine - Counsel for Judgment Creditor Respondent
R.J. Payne the Judgment Debtor Applicant in person

Judgment: 8 February 2013

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 8 February 2013.

Solicitors: Crown Law, PO Box 2858, Wellington 6140

THE ATTORNEY-GENERAL V RJ PAYNE HC WN CIV-2004-485-1723 [8 February 2013]

Introduction

[1] Before the Court is an application filed on 30 August 2012 by Roger John Payne (Mr Payne) seeking recall of a bankruptcy judgment of this Court made against him as a judgment debtor on 25 May 2005. The present recall application is opposed by the Attorney General, the judgment creditor who brought that bankruptcy proceeding.

[2] The Official Assignee has also indicated to the Court some involvement in the present application. On this aspect, a Memorandum of Submissions dated 24
January 2013 has been filed for the Official Assignee which contends that Mr Payne’s recall application should be dismissed. Details as to why the Official Assignee might be involved in this matter are to follow.

Background Facts

[3] Some years ago, Mr Payne brought a number of proceedings in this Court alleging misfeasance in public office against three Judges of the Family Court. On behalf of those Judges, the Attorney General applied for these proceedings to be struck out and succeeded in relation to them all. Costs were awarded to the Attorney General in relation to each claim in a judgment of this Court dated 24 February
2004.

[4] Mr Payne sought unsuccessfully to review those decisions granting strike-out

- in this Court His Honour Justice Ronald Young upheld all three decisions and awarded indemnity costs against Mr Payne.

[5] Mr Payne then applied for leave of this Court to appeal those decisions but, on 18 November 2004, this was declined by His Honour Justice Miller. Mr Payne then sought special leave to appeal against the judgment of His Honour Justice Ronald Young and the original strike-out judgment, but this application was also essentially dismissed.

[6] Throughout, Mr Payne had failed to pay the amount awarded in the costs decision of 24 February 2004. The Attorney General as judgment creditor therefore brought bankruptcy proceedings against him following Mr Payne’s failure to comply with a Bankruptcy Notice which had been issued for the costs award. The subsequent hearing of the bankruptcy application, which was to take place on 13
December 2004, was then adjourned some five times prior to its final hearing on 23

May 2005.

[7] Subsequent to that 23 May 2005 hearing, on 25 May 2005 Mr Payne was adjudicated bankrupt essentially on the basis that:

(a) All appeal…

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 Attorney-General v Payne

Details

AGLC: Attorney-General v Payne [2013] NZHC 55
Case: [2013] NZHC 55
Decision Date: 8 February 2013

CaseChat Overview and Summary

The case of Attorney-General v Payne was heard in the High Court of New Zealand and involved an application by Roger John Payne, the judgment debtor, to recall a bankruptcy judgment made against him in 2005. The application was opposed by the Attorney-General, the judgment creditor. The Official Assignee also expressed an opinion that the application should be dismissed.

The key legal issues in the case were whether the court had jurisdiction to recall the bankruptcy judgment, and if so, whether the grounds for recall were established. The court found that under High Court Rule 11.9, a judgment may only be recalled before it is sealed, which had occurred in this case. Furthermore, the court found that recall of a bankruptcy judgment was not permissible as it would undermine the finality of such judgments. The court also found that Payne's claims of new facts did not warrant recall as they were not truly new and had been previously considered.

In conclusion, the court dismissed Payne's application to recall the bankruptcy judgment. The court found that it did not have jurisdiction to recall the judgment once it had been sealed and that the grounds for recall were not established. The Attorney-General was awarded costs on a category 2B basis.

Orders