Bank of New Zealand v Donaldson

[2016] NZHC 1507

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2016-483-37 [2016] NZHC 1507

UNDER	the Insolvency Act 2006
IN THE MATTER OF	the bankruptcy of Keith Alastair Donaldson
BETWEEN	BANK OF NEW ZEALAND Judgment Creditor
AND	KEITH ALASTAIR DONALDSON Judgment Debtor

Hearing:	4 July 2016
Counsel:	J B Gilbert for the Judgment Creditor No appearance for the Judgment Debtor
Judgment:	4 July 2016

ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH

[1]      The   judgment creditor   (the   Bank)   applies   for   an   order   adjudicating Mr Donaldson bankrupt.  The amount of the debt stated in the creditor’s application is $23,894.38.  I am satisfied that the formalities of the application, including service of the application and the bankruptcy application on which it was based, have been properly attended to by the Bank.   I have today received a solicitor’s certificate confirming that the debt remains unpaid as at today’s date.

[2]      The Bank’s application was first called on 8 June 2016, when Mr Donaldson appeared in person.   He had very recently before that date filed a number of documents, including a document entitled “Appearance under protest to jurisdiction” and another document entitled “Notice of understanding and intent and claim of right”  (this  latter  document  containing  a  number  of  pages  under  the  heading

“Affidavit of Truth”).

BANK OF NEW ZEALAND v KEITH ALASTAIR DONALDSON [2016] NZHC 1507 [4 July 2016]

[3]      Mr Donaldson had in fact filed two documents in this Court on receipt of the bankruptcy notice that was served on him.  One was entitled “ORDER OF DECREE HIGH  TREASON”  and  the  other  “Affidavit   of  truth”.     By  Minute  dated

6 April 2016,  Associate Judge  Osborne  declined  to  receive  the  documents  as  a formal appearance by Mr Donaldson under r 5.49 of the High Court Rules.   His Honour held that the documents did not constitute an application to set aside the Bank’s bankruptcy notice.

[4]      Mr Donaldson did not appear when the case was called today, but I have considered the various documents filed by him after the service of the Bank’s creditor’s application.  The documents I have looked at include a document filed late last week, being a copy of a letter from Mr Donaldson to the Hon Craig Foss, attaching what was said to be two copies of a financing statement purporting to secure debts apparently owed by Mr Donaldson over various items of property. Mr Donaldson appears to be described as both the “Secured Party”, and also the debtor.  It is not at all clear what relevance, if any, this document might have to the Bank’s application for an adjudication order.

[5]      It is difficult to discern from the various documents filed by Mr Donaldson precisely what arguments he is endeavouring to make.  However it appears that the main  one  is  that  he  considers  that  he  is  a  sovereign  individual,  who  has  not consented to the laws enacted by the Government of New Zealand (or alternatively has revoked any consent he may be considered to have given).

[6]      There is no merit in this argument.  Heath J reviewed the issues that arise on sovereignty challenges such as this in The Queen v Mason.1   His Honour noted that the Courts derive their authority to hear and determine cases from the exercise of Parliament’s legislative powers.  Once a statute has conferred jurisdiction on a Court to hear and determined a criminal cause, it is impermissible for any other institution or tribunal to attempt to replicate those powers.2    Heath J went on to refer to the

judgment of Randerson J in Barrett v Police,3 holding that, since the adoption of the

1      The Queen v Mason [2012] NZHC 1361.

2      While The Queen v Mason was a criminal case, the same principle applies to proceedings such as this.

3      Barrett v Police HC Hamilton CRI-2003-419-64, 14 June 2004.

Statute of Westminster 1931 (Imp) in 1947, the New Zealand Parliament has had full and exclusive power to legislate in New Zealand.   Today, the power to legislate springs from the Constitution Act 1986.

[7]      In  this  case,  there  is  clear  jurisdiction  conferred  on  the  Court  by  the

Insolvency Act 2006.  No question of jurisdiction can arise.

[8]      At one point Mr Donaldson appeared to be relying on certain promissory notes he had sent to the Bank, but it is not clear that he is still relying on that defence.   In any event, I found in Bank of New Zealand v Debra Donaldson,4  a judgment given on 8 June 2016, that the Bank was not bound to accept the same promissory notes.  I also found (on essentially the same facts) that the Bank was not estopped from denying that it was entitled to reject the promissory notes.

[9]      I can discern nothing else in the documents filed by Mr Donaldson which might conceivably amount to a defence.  In the circumstances, the Bank is entitled to an adjudication order.

[10]     I make the following orders:

(a)       an order for adjudication;

(b)costs to the Bank on a 2B basis plus disbursements as fixed by the registrar.

[11]     The foregoing orders are timed at 10.30am.

Associate Judge Smith

4      Bank of New Zealand v Debra Donaldson [2016] NZHC 1225.