Baker v Libeau

[2024] NZHC 3810

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-425-70

[2024] NZHC 3810

IN THE MATTER

of the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of JEAN-MICHEL LIBEAU

BETWEEN

ROBERT DARCY BAKER

Judgment Creditor

AND

JEAN-MICHEL LIBEAU

Judgment Debtor

Hearing:	12 December 2024
Appearances:	G E Slevin for Judgment Debtor
Judgment:	12 December 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

BAKER v LIBEAU [2024] NZHC 3810 [12 December 2024]

[1]On 14 November 2024, an order was made adjudicating Mr Libeau bankrupt.

[2]        Mr Libeau had requested to appear at the 14 November hearing by audio-visual link (AVL). I recorded Mr Libeau did not appear at the hearing because he did not join the hearing by AVL. On 12 December 2024, with the assistance of counsel Mr Slevin, Mr Libeau applied to annul his bankruptcy on the basis that due to technical reasons, perhaps at the Court or otherwise (such cannot be determined),  Mr Libeau did not appear on 14 November.

[3]        Mr Libeau seeks that the application for adjudication be re-heard as if no adjudication had been made.

[4]Mr Libeau’s application for annulment was called on 12 December 2024.

[5]        Mr Libeau claims he will be able to pay the debt owed to the petitioning creditor through the sale of shares in a company he owns overseas and/or otherwise, by raising money overseas.

[6]        Ms Serrant,  Deputy   Official   Assignee,   appeared   at   the   hearing   on  12 December 2024 to assist the Court. From the Official Assignee’s point of view it would be preferable for the annulment application to be granted given Mr Libeau has or intends to raise funds offshore.

[7]        By a narrow margin, and given Mr Libeau’s sworn evidence that he was unable to join the hearing on 14 November 2024, there is an order annulling Mr Libeau’s bankruptcy pursuant to s 309(1)(a) of the Insolvency Act 2006.

[8]        That leaves the application to have Mr Libeau adjudicated needing to be re-heard.

[9]        I expressed to Mr Slevin some scepticism as to Mr Libeau’s ability to raise the funds to pay Mr Baker. Mr Libeau must treat this as his last chance.

[10]      Mr Baker did not appear on 12 December 2024 perhaps because he was only served by email on 11 December 2024. There is no prejudice to Mr Baker in the

adjournment. Mr Libeau will have to have paid by the next call date or he will be bankrupted.   The reality is, Mr Libeau’s bankruptcy would not have progressed to   a great extent over the Christmas/New Year period in any event.

[11]      Mr Baker’s application to adjudicate Mr Libeau bankrupt will be called at 10:00am on 3 February 2025. The matter will be heard before another scheduled hearing.

[12]      I made it clear to Mr Slevin that no further adjournments will be granted. Further claims of attempts to sell shares offshore or raise money offshore will simply not be sufficient. Mr Libeau has been talking about selling shares in offshore entities for an extended period and the simple fact is no money has eventuated. To be clear, this is Mr Libeau’s last chance.

[13]      Mr Baker may appear at the call on 3 February 2025 by AVL or otherwise file a memorandum simply confirming that he wants an order for adjudication to be made.

[14]      At the risk of labouring the point, any further applications for adjournments will not be entertained.

Associate Judge Lester

Solicitors:
Haigh Lyon Lawyers Limited, Auckland

Counsel:

G Slevin, Barrister, Christchurch Ms Serrant, Official Assignee Mr Baker