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 rights and remedies in relation to the costs decision of 24

February 2004 had been exhausted.

(b)Mr Payne had failed to comply with the Bankruptcy Notice and this had constituted an act of bankruptcy.

(c)      Mr Payne had not put before the Court any material to show that he was anything other than insolvent, being unable to pay his debts as they fell due.

(d)There was a risk that Mr Payne might seek to dissipate his assets in a manner prejudicial to the Attorney General as judgment creditor and his other creditors.

(e)      No reason existed for the Court to exercise its discretion against the making of an order of adjudication.

[8]      That adjudication order made on 25 May 2005 was sealed on 26 May 2005.

[9]      Mr Payne then applied to have the bankruptcy order annulled relying on s

119(1)(a) and (b) of the Insolvency Act 1967.

[10]     That annulment application was heard and determined on 23 June 2005.  In its decision on the application, the Court found first, that it was not appropriate to

annul the adjudication order under s 119(1)(a) of the Insolvency Act 1967 on the basis the order should never have been made because:

(a)      The Bankruptcy Notice had related to a court ordered costs award, it was properly served on Mr Payne the applicant, and it was not complied with.

(b)The applicant Mr Payne had exhausted all appeal and review rights in relation to the judgment resulting in the costs award in issue.

(c)      The  applicant  Mr  Payne’s  failure  to  comply  with  the  Bankruptcy Notice provisions constituted an act of bankruptcy giving rise to the jurisdiction of the Court to make an order for adjudication.

(d)Once the bankruptcy application was made and served on Mr Payne there was no legal impediment to the order being made.

[11]     Secondly,  however,  the  Court  was  prepared  to  grant  an  annulment  order under s 119(1)(b) of the Insolvency Act 1967 and one was granted on the basis that:

(a)      Subsequent to the bankruptcy order, the sum of $239,501.74 had been paid into the Official Assignee’s bank account from the proceeds of the sale of Mr Payne’s former matrimonial home.

(b)Official Assignee reports indicated that the funds available would be more than enough to repay Mr Payne’s outstanding debts and costs.

(c)      There was little question that his debts could be fully paid or satisfied from those funds.

(d)The annulment order accordingly was granted in terms of s 119(1)(b) Insolvency Act 1967, but sealing of the order was conditional on the applicant’s debts accepted by the Official Assignee being satisfied and the judgment creditor’s and Official Assignee’s costs and disbursements being first paid.

[12]     Over  seven  years  later,  on  30 August  2012,  Mr  Payne  filed  the  present application which I repeat seeks to recall the original adjudication decision of 25

May 2005.

Preliminary Issue

[13] I turn now to address the preliminary issue signalled at [2] above as to the possible involvement of the Official Assignee in the present application.

[14]     Relatively recently, on 19 September 2012, Mr Payne was again adjudicated bankrupt, this time in the High Court at Timaru.   An application brought by Mr Payne also to recall that adjudication decision was heard in the High Court at Timaru on 13 December 2012 and was dismissed.

[15]     In the meantime, I have been told that a temporary stay order, preventing the sealing of the adjudication order, was made by the High Court in Christchurch or Timaru.

[16]     The Official Assignee in his Memorandum of Submissions filed in this Court on 24 January 2013 however states at para [1] that the “.... stay preventing the sealing of the adjudication order was lifted on 18 December 2012.”

[17]     In response, Mr Payne has before me disputed that this was the case and he submitted that he had since filed an “Application for an Injunction” in the High Court at Christchurch or Timaru preventing the sealing of the 19 September 2012 adjudication order and that remains to be heard in the meantime.

[18]     Notwithstanding this, the Official Assignee at para 3 of his counsel’s 24

January 2013 Memorandum states:

3.        Having further considered the nature of the applicant’s (Mr Payne’s) claim, the Official Assignee is satisfied that the right to bring the present application (to recall the 25 May 2004 bankruptcy judgment) is property that has vested in the assignee by virtue of the applicant’s current bankruptcy.

[19]     That 24 January 2013 Memorandum from counsel for the Official Assignee at para 6 and 7 goes on to state:

6.        The Assignee has not been asked to assign this claim to the bankrupt and would not do so if asked to, having regard to its merits.  The judgment has been  sealed.    Once  a  judgment  (other  than  an  order  or  judgment  by consent) has been sealed, recall is no longer possible:   Sharma v ANZ Banking Group  CA264/91, 12  June  1992;  Hanmore v  Ganley  (No.  2) (1995) 9 PRNZ 25.

7.        The Assignee accordingly submits the application should be dismissed, either on the grounds the Applicant lacks standing to pursue it, or on the merits.

[20]     That position taken by the Official Assignee is simply noted at this point.

Present Recall Application

[21]     Returning to the substance of the present recall application, the essential grounds advanced by Mr Payne in support which he sets out at paras 4-7 (inclusive) of his application are as follows:

4.        Discovery of new facts concerning funds belonging to me, held by the Wellington High Court, at the time of the alleged bankruptcy, in a related case currently before the Real Estate Agents Disciplinary Tribunal, shows beyond all doubt that I should not have been bankrupted by Associate Judge D.I. Gendall on 25 May 2005.

5.        The damage done to my reputation, my career and ability to apply for services such as electricity supply to my home has been extreme and very unjust. The damage is ongoing.

6.        Details on the discovery of the new facts and the damage are shown in the attached affidavit.

7.        Relief sought:  Upon the above recall law grounds 1, 2 and 3, the new facts show the judgment to be plainly wrong.   In the interests of justice the bankruptcy must be completely cancelled and all costs associated with the bankruptcy and unbankrupting of me must be returned to me.

[22]     In response, the Notice of Opposition by the Attorney General to the present recall application advances the following grounds in opposition:

(a)       Under High Court Rule 11.9, a judge may only recall a judgment before a formal record of it is drawn up and sealed.  High Court Rule 11.9 has no application once  a  judgment  is  sealed.    In  this  case, Associate  Judge

Gendall’s decision to adjudge the applicant as bankrupt was sealed on 26

May 2005.

(b)       In any event, recall of a judgment is a serious step only to be exercised where, for a very special reason, justice requires a recall.

(c)       The applicant asserts that he has discovered a new fact subsequent to the bankruptcy decision being given which requires that the bankruptcy judgment be recalled.  The applicant states that the new fact is that there was a deposit of $35,500.00 held by the High Court at the time of the bankruptcy in relation to a court ordered sale of the applicant’s home.  The applicant asserts that this money would have met the judgment creditor’s costs  and  accordingly, at  the  time  he  should  not  have  been  adjudged bankrupt. The judgment creditor says that this is not a new fact. Associate Judge Gendall in his decision of 25 May 2005 noted at [38] that:

....  this  property  has  been  the  subject  of  a  sale  by  the Registrar of the High Court pursuant to an order of this Court dated 7 September 2004 at a total sale price of $355,000.00.

(d)       In addition, the applicant made a similar contention to the current one in his application for recall at the time the bankruptcy was annulled on 23 June

2005.  At that time, the applicant contended that when he was adjudicated bankrupt there  were  facts  not  known to  the  Court  which should  have prevented an order for adjudication being made.  These facts related to the Sale and Purchase Agreement for the bankrupt’s former home following the court order for the sale which was due for settlement shortly after the date of adjudication. Associate Judge Gendall in his decision of 23 June 2005 at [10] annulling the bankruptcy noted:

... the fact that the Registrar of the High Court had signed an agreement for the sale of the former matrimonial home, although  known  to  the  Court  was  an  issue  at  the  time formally challenged by the applicant.   Indeed, he had purported to register a caveat against the title to the property to  prevent the  sale.    Further, he  maintained that  appeals, applications to various courts to recall judgments, and a possible appeal to the Supreme Court were pending.   The likelihood of the settlement of this sale, according to the applicant at the time, was therefore not a possibility.

In addition, as noted in the bankruptcy decision of Associate Judge Gendall dated 25 May 2005 at [38]:

The judgment debtor has chosen in his affidavit to make no reference to  a  number of  orders  of  this  and  other  courts against him for both costs and the final amount due to his former wife under earlier orders made by the District Court.

(e)       Accordingly, the High Court was aware at the time the bankruptcy order was made that the matrimonial home had been the subject of a sale by the Registrar of the High Court at a total sale price of $355,000.00.  However, the applicant had indicated to the Court that the sale was being formally challenged.  In addition, whilst the bankruptcy order was made for the sum of $13,298.13, there were a number of outstanding court orders for costs owed to the judgment creditor, as well as an outstanding amount owed by the applicant to his former wife under earlier orders made by the District

Court, which exceeded the $35,500.00 held by the High Court as a deposit from the disputed sale of the matrimonial home ........

[23]     A further preliminary issue arises here.   This is the question whether the applicant Mr Payne may indeed have standing to bring the present application, given the comments of the Official Assignee which I have noted at paras [18] and [19] above.   It is clear also from submissions made to me on behalf of the Attorney General that he supports the view expressed by the Official Assignee that the present claim is one vested in the Official Assignee and that Mr Payne does in fact lack standing to bring this claim.

[24]     As noted at para [17] above, however, Mr Payne purports to dispute that the

19 September 2012 adjudication order made by the High Court at Christchurch has in fact been sealed and is operative, as the Official Assignee contends.   On what material is before me here, the definitive position on this is not entirely clear.  On this basis therefore, and for present purposes only, I am prepared to accept that Mr Payne as the applicant does have standing to bring the present application.

[25]     That brings me to a consideration of r 11.9 High Court Rules under which the present application is effectively brought which provides:

11.9      Recalling Judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[26]     McGechan on Procedure at para 11.9.01(6) addresses this rule and confirms clearly that r 11.9 has no application to allow recall once a judgment is sealed – Thomson v Thomson (1992) 10 FRNZ 17.

[27]     In the present case, it is not contested that the 25 May 2005 decision of this Court to adjudge Mr Payne bankrupt was sealed on 26 May 2005.  Accordingly I find that as the judgment was sealed and the Court was effectively functus officio at the time, there is no jurisdiction pursuant to r 11.9 High Court Rules to recall that adjudication decision.  On this ground alone Mr Payne’s present application must fail and it is dismissed.

[28]     As an aside, it is noted at this point that remedies were available to Mr Payne when the adjudication order was made against him on 25 May 2005, including a possible application for an annulment under s 119(1) Insolvency Act 1967 (which he did unsuccessfully pursue at the time), a possible appeal or an application for a stay. Recall of the judgment, however, was not a possibility.

[29]     Next, there are a range of authorities (including a recent decision of this Court noted below) which have found that, although r 11.9 High Court Rules permits a Judge to recall a judgment prior to it being sealed, this in any event does not apply to an adjudication in bankruptcy.

[30]     In the recent decision in this Court, being a judgment of Associate Judge Matthews in Payne v New Zealand National Party HC, Timaru, 17 December 2012 (2012) NZHC 3465 (which interestingly involved the same Mr Payne, the applicant here), the Associate Judge at [22] and [23] states:

[22]     Although r 11.9 permits a Judge to recall a judgment prior to it being sealed, this does not apply to an adjudication in bankruptcy.   It is well established that an adjudication cannot be rescinded.   In Re Byron, Tompkins J said:

In  my  view,  s  9(e)  in  spite  of  its  wide  and  far  reaching character does not give power to rescind an order of adjudication. The rescission of an order of adjudication is quite different  from  reviewing an  order  dismissing a  petition,  or revoking an order of discharge.  In the first case the bankrupt’s property has been transferred to the Official Assignee, rights of creditors against the bankrupt have been restricted, and there has been a change in the status of the debtor.  In the second and third cases the property of the bankrupt has not been affected by being vested in any other person, and rights of creditors have not been restricted.  My view as to this is reinforced by the terms of s 136(1) which gives a special power to the Court to annul an adjudication where the order ought not to have been made .... .  It is in my opinion the appropriate and only power to be invoked where an order of adjudication should not have been made for any reason.

[23]     Although s 9 is not replicated by an equivalent section in the Insolvency Act 2006, the principle enunciated by Tompkins J remains valid.  As under the earlier Act, the property of a bankrupt is transferred to the Official Assignee (s 64(1)(e)) the rights of creditors are restricted (s 64(1)(d)) and there is a change of status of the debtor, whose affairs pass to the control of the Official Assignee and are thence governed by the statutory regime set out in the Insolvency Act 2006.

[31]     In addition Brookers Insolvency Law & Practice at para IN309.01, which addresses applications to annul bankruptcy orders, notes:

IN 309.01   Order for Adjudication May Not Be Rescinded

An order for adjudication cannot be rescinded under s 414 or under the Court’s inherent jurisdiction.   The only course is to annul the adjudication order under s 309:   Re:   Byron (a debtor) Ex Parte CIR [1964] NZLR 508; Re:  Guest Ex Parte BNZ Finance Limited [1991] 1

NZLR 250; (1994) PRNZ 351, see also Holdgate v Campin 24 June

1997 Master Anne Gambrill HC, Auckland, B1545-96.

[32]     The rationale for this is clear as noted in Re:  Byron at p 509 as follows:

An order of adjudication has immediate effect in respect of the property of the bankrupt. Section 51 fixes the date of the order on a creditor’s petition as the date of adjudication, while s  53(1) says that  upon adjudication all  the  property of the bankrupt vests in the Official Assignee.  Sub-section (2) says that all proceedings to recover  debts  provable under  the  bankruptcy shall  be  stayed.    Sub-section (3) prevents any further execution, attachment, or other process against the debtor’s property.  Between the date of adjudication and the date on which the Court deals with an application under s 9(e) to rescind the order there may be dealings by the Official Assignee with the bankrupt’s property.   There may be various other proceedings which creditors do not take or continue because of the order of adjudication, which is immediately advertised. Furthermore, an order adjudicating a debtor bankrupt effects a change in status, making the debtor subject to the duties and disabilities of an undischarged bankrupt.

[33]     And, the suggestion that one course to be taken by a dissatisfied bankrupt who wishes to properly challenge her/his adjudication order is an annulment application under s 309 Insolvency Act 2006 rather than a recall application like the present, as I see it, is further reinforced by the provisions of s 311 Insolvency Act

2006 which address specifically the difficulties noted in Re:  Byron at [32] above.

[34]     For all these reasons, I find that the Court here does not have jurisdiction to recall the 25 May 2005 adjudication decision and thus the present application must also be dismissed here.  As I have outlined above, the Courts including this Court have previously taken the view that recall on a bankruptcy decision is not available and that annulment, possibly an appeal or stay application, or an application for discharge are the only methods for challenging such a decision, and I concur.

[35]     This effectively disposes of the present application, which is dismissed.

[36]     Notwithstanding this, and simply for the sake of completeness, I will now turn to briefly consider the merits of the present application, but in any event as will appear later in this judgment, I find these also do not assist Mr Payne here.

[37]     For, even if this court did have jurisdiction to recall the adjudication decision (and I have found above that such jurisdiction does not exist) there are no grounds in my view, that would justify a recall in this case.

[38]     Recall of a judgment is a serious step which the Courts have accepted is only to be exercised where, for a very special reason, the interests of justice require a recall – Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No. 2) [2009] NZSC 122, [2010] 1 NZLR 76(SC) at [19].

[39]     As  McGechan  on  Procedure  dealing  with  recalling  judgments  at  HR

11.9.01(2) notes:

(2)        Principles

(a)        The leading statement in New Zealand remains that of Wild CJ in

Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633:

“Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.”

....................................  The underlying policy is to reconcile the broad ends of justice in relation to the particular case, and the desirability of finality in litigation at first instance ........

[40]     Mr Payne here appears  principally to  rely on  the third ground,  noted in Horowhenua County v Nash at [39] above.  He asserts he has discovered a new fact subsequent to the bankruptcy decision, namely that he says there was a deposit of

$35,500.00 held by this Court at the time of the bankruptcy, in relation to a court ordered sale of his former matrimonial home.  Mr Payne seems to claim this money would have covered the Attorney-General’s costs and therefore he should not have been adjudged bankrupt in May 2005.

[41]     Mr Payne also claims in support of his application for recall that there were other facts not known to the Court which should have prevented an order for adjudication being made.  These facts related to the sale and purchase agreement for

the bankrupt’s former matrimonial home following a court order for the sale due to

be settled shortly after the date of adjudication.

[42]     Contrary to Mr Payne’s assertions however these are not new facts.  In my

judgment of 25 May 2005 I noted at [38]:

.... this property has been the subject of a sale by the Registrar of the High Court pursuant to an order of this Court dated 7 September 2004 at a total sale price of

$355,000.00.

[43]     And Mr Payne had also raised similar issues previously, in his June 2005 application for annulment of the bankruptcy adjudication.   Those issues were addressed in my 23 June 2005 annulment decision:

.... the fact that the Registrar of the High Court had signed an agreement for the sale of the former matrimonial home, although known to the Court was an issue at the time formally challenged by the applicant.  Indeed, he had purported to register a caveat against the title to the property to prevent the sale.  Further, he maintained that appeals, applications to various courts to recall judgments, and a possible appeal to the Supreme Court were pending.  The likelihood of the settlement of this sale, according to the applicant at the time, was therefore not a possibility.

[44]     In my 25 May 2005 adjudication decision I noted also that Mr Payne chose not to refer to the fact that he had a number of other court orders against him for costs and final amounts owing to his former wife.  As noted above, I was aware at the time of the bankruptcy that the former matrimonial home had been the subject of a sale by the Registrar of this Court.  Mr Payne had indicated however that the sale was being formally challenged and in addition, whilst the bankruptcy order sought by the Attorney-General was with respect to the sum of $13,298.13, there were other outstanding orders for costs due to the Attorney General as well as outstanding amounts owing by Mr Payne to his former wife.

[45]     And also in my 25 May 2005 adjudication decision I noted additional aspects at [49], [50], [51] and [52] as follows:

[49]     There is another aspect of concern here.  This relates to the long history of this matter and the related litigation which the judgment debtor has pursued over a number of years through this Court, the Family Court, the Court of Appeal and even the Supreme Court.  The judgment debtor has at no time accepted the correctness of any decision made against him by any of these Courts.   On a number of occasions before me he has said that the costs order the subject of this petition and other costs orders made against him

are not payable and he has emphasised that they will not at any time be paid.

[50]     This raises an obvious issue that even if the judgment debtor was placed in a position where he had some realisable funds either from the sale of the house property or otherwise, then given what appears to be the depth of the feelings he has exhibited over matters surrounding all this litigation, there is a possible risk that he might take steps to dissipate these assets in a way that would prejudice the interests of the judgment creditor here and his other creditors.

[51]     In Re Charon (2000) 19 NZTC 15,855 the debtor had assets which the Court feared might be dissipated, there having been four previous calls of that proceeding giving the debtor an opportunity to pay.  On that basis, an order  for  the  debtor’s  adjudication was  made  under  the  circumstances prevailing in that case.

[52]     In my view, the situation in the present case to some extent has certain parallels.   As I see it, this issue of possible dissipation of assets is one matter that needs to be taken into account given the interests here of all the judgment debtor’s creditors, and indeed the wider public interest.

[46]     Before me, Mr Payne purported to cite the cases of AMP Finance Ltd v Heaven[1]and  Unison  Networks Ltd  v Commerce Commission[2]in  support  of his contention that new facts have been discovered justifying recall in the present case.

[1] AMP Finance Ltd v Heaven (No 2) CA 151/97, 11 March 1998.

[2] Unison Networks Ltd v Commerce Commission [2007] NZCA 49.

[47]     But, in my view those cases, both relating to Court of Appeal decisions, do not assist Mr Payne here.  If anything, they would appear to support the Attorney- General’s opposition to his application.  The decision in AMP Finance as I see it was a standard decision declining recall.   There, the Court found that none of the Horowhenua grounds were made out and to allow recall to be entertained would fall well outside established principles. The Court noted at [3] that to grant the recall would:

....... seriously undermine the  general principle that  those  who  are  dissatisfied with judgments should raise their concerns by way of appeal, rather than by seeking to revisit issues ventilated and adjudicated on by the Court concerned.

[48]     The Insolvency Act 1967 (and the 2006 Act) provide for a limited degree of revisiting of a judgment by the High Court through the annulment process, but otherwise the statement of the court in the AMP Finance decision noted at [47]

above in my view is equally applicable to the current proceeding.

[49]     The Unison decision also does not appear to support the contention advanced by Mr Payne.   That decision also declined an application for recall of a Court of Appeal decision.  There was discussion in that case over whether a notice issued by the  Court  of  Appeal  constituted  “perfection”  of  a  judgment  for  Horowhenua purposes (there was no express provision at the time for the Court of Appeal to “seal” a judgment).

[50]     The Court of Appeal then discussed the ability of Appellate Courts to reopen their own decisions even if perfected, but it was not required to consider whether there were grounds for re-opening the case before it, as it held at [14]-[18] the application did not even meet the lower threshold of the Horowhenua test for recall.

[51]     The Unison case also confirms that the third category of grounds for recall is intended to be narrow and the cases appropriate for recall on that basis are likely to be rare.   This case does not appear to have any direct relevance to the current application  which  concerns a  request  for  the  High  Court  to  reopen  a  perfected judgment.

[52]     If Mr Payne was unhappy with the annulment decision he may have been able to appeal that decision under s 8 or seek a stay of it under s 9 of the Insolvency Act 1967.  He chose not to.  I find that there is no basis for any recall in the matter before me.

[53]     Mr Payne’s essential point here, as  I understand it, is his  claim that the annulment of his bankruptcy which was granted should have taken place from the date of the bankruptcy adjudication rather than from the date of the ultimate annulment.

[54]     This complaint, however, is answered by s 119 of the Insolvency Act 1967 which provided that only annulments under s 119(1)(a) took effect from the date of the bankruptcy adjudication.  Annulment on any other basis was to take effect from the date of the annulment  and  the bankruptcy remained  valid  from  the date of bankruptcy to the date of annulment.

[55]   In my 23 June 2005 annulment decision I clearly rejected Mr Payne’s submission that the adjudication should never have been made and therefore should be annulled on the basis of s 119(1)(a).  The annulment was instead granted on the basis of s 119(1)(b) and thus Mr Payne’s bankruptcy remained valid for the period to the date of annulment.

[56]     The proper course as I see it for Mr Payne to challenge his adjudication decision was through an annulment application – which he did bring and which was in fact successful – or potentially an appeal under s 8(2) of the Insolvency Act 1967. Mr Payne at the time might have been able to challenge the decision not to annul his bankruptcy on the basis of s 119(1)(a) by way of a s 8(2) appeal, but he chose not to do so.

[57]     Failure  to  challenge  (or  to  seek  the  leave  of  the  Official  Assignee  to challenge) the adjudication decision or the annulment decision through the proper avenues in my judgment does not justify a recall in this case.

[58]     For these reasons also I would dismiss Mr Payne’s present recall application.

Conclusion

[59]     It will be apparent from what is outlined above that the application before me by Mr Payne seeking recall of my 25 May 2005 judgment fails.  An order is now made dismissing that application.

[60]     As to costs the Attorney General has succeeded in opposing the present application and I see no reason why the costs sought by him on a category 2B scale basis should not be awarded here.

[61]     Costs are therefore awarded against Mr Payne in favour of the Attorney General on this application on a category 2B basis together with disbursements (if any) as approved by the Registrar.

‘Associate Judge D.I. Gendall’