Attorney-General v Payne HC Wellington CIV-2004-485-1723

[2005] NZHC 1681

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2004-485-1723

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

AND

ROGER JOHN PAYNE

Debtor

Hearing:         2 May 2005

Appearances: B.K. Cunningham for Judgment Creditor Debtor R.J. Payne in person

Judgment:      2 May 2005

ORAL JUDGMENT OF ASSOCIATE JUDGE A.P. CHRISTIANSEN

[1]   On 11 April 2005 Associate Judge Gendall directed there be a final adjournment of the creditor’s petition until today. He further directed the debtor to file and serve  a full affidavit setting out details of his means and setting out his assets and liabilities.

[2]   The debtor has responded with an affidavit dated 24 April 2005. He asserts he has a mortgage-free home and with his car and contents he has assets exceeding

$500,000.00, and he has no debts. Curiously in support of this claim, he annexes a copy of a caveat recently registered by him over a home apparently registered in the joint names of himself and his former wife.

[3]   It may be that the home is the subject of a Family Court judgment that he is seeking to challenge. Alternatively, the home is subject to an as yet unresolved

The Attorney-General V Payne HC WN CIV-2004-485-1723 2 May 2005

dispute over matrimonial property. Whatever the position, the caveat serves only to support Mr Cunningham’s submission that the debtor’s interest in that asset, if any, would not in the foreseeable future be realisable in order to meet the judgment creditor’s debt.

[4]   The debtor has annexed to his affidavit copies of the correspondence with the Court of Appeal Registry. It appears that applications by the debtor have been given hearing dates in the Court of Appeal on 10 May 2005 and 16 May 2005. Although I have no information regarding those Court of Appeal hearings, I anticipate they concern applications affecting various judgments which the debtor is challenging. Indeed one may have given rise to the costs order which is behind today’s petition.

[5]   There is no evidence before me of a stay or appeal in relation to the costs judgment which is the subject of the petition for bankruptcy. The petition has been before the Court for about six months. In a Minute issued on 21 February 2005 Justice Wild made it quite clear that although a review application against an oral judgment of Associate Judge Gendall was being adjourned, that adjournment would not operate as a stay of the bankruptcy matter. However, the grant of the petition today, as the Court would otherwise be mindful to do, may affect the ability of the debtor to prosecute his hearings before the Court of Appeal on 10 May and 16 May 2005. For that fact alone there may be proper reason to adjourn this bankruptcy petition yet again, but only to the first available list date after 16 May 2005, i.e. 23 May 2005. Barring extraordinary circumstances, the petition will be ruled upon on that date.

Associate Judge A.P. Christiansen

Solicitors:

Luke Cunningham Clere, Wellington for Judgment Creditor