Bank of New Zealand v Koroniadis

[2015] NZHC 1973

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-2905 [2015] NZHC 1973

UNDER	The Insolvency Act 2006
IN THE MATTER OF	the bankruptcy of Athanasios Koroniadis
BETWEEN	BANK OF NEW ZEALAND Judgment Creditor
AND	ATHANASIOS KORONIADIS Judgment Debtor

Hearing:	19 August 2015
Counsel:	J Toebes for the Judgment Creditor No appearance for the Judgment Debtor
Judgment:	19 August 2015

ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH

[1]      The  judgment creditor  bank  (the  Bank)  applies  for  an  order  adjudicating Mr Koroniadis bankrupt.  The application is based on a judgment of Associate Judge Gendall made as long ago as 8 July 2013.

[2]      The Bank issued a bankruptcy notice based on the judgment on 24 July 2013 for the total sum of $1,196,290.54.

[3]      Mr Koroniadis  did  not  comply  with  the  bankruptcy  notice  or  make  an application to set it aside within the time allowed, but he did file an appeal to the Court of Appeal against the judgment of the Associate Judge given on 8 July 2013.

[4]      The  Bank  issued  the  present  bankruptcy  proceeding  on  27 August 2013. Mr Koroniadis applied for an order halting the proceeding pending the determination of his appeal to the Court of Appeal, and in a judgment given on 25 October 2013

Associate Judge Bell granted the halt order.

BANK OF NEW ZEALAND v ATHANASIOS KORONIADIS [2015] NZHC 1973 [19 August 2015]

[5]      Mr Koroniadis’ appeal was dismissed by the Court of Appeal in a reserved judgment given on 28 July 2015.   The Bank then requested that the adjudication proceeding in this Court be listed again for hearing.  The Registrar included the case in the list for 11 August 2015, and Mr Koroniadis was duly advised of that date.

[6]      Mr Koroniadis filed a memorandum on 10 August 2015, advising among other things that he is now resident in Hamilton, and that he intended to file an appeal to the Supreme Court against the decision of the Court of Appeal.  By Minute issued on 10 August 2015 I directed that the proceeding should not at that stage be transferred to the Hamilton Court (as Mr Koroniadis had requested), and that I would need to hear further from the Bank on any issue of a transfer to Hamilton.  However in view of the fact that Mr Koroniadis’ request for transfer had only come to hand one day before the scheduled hearing I directed that the case should be taken out of the list for 11 August 2015 and called in this Court in Wellington at 10am on

19 August 2015.

[7]      By memorandum dated 12 August 2015 the Bank opposed Mr Koroniadis’

request for a transfer of the proceeding to the Hamilton registry of the Court.

[8]      Mr Koroniadis filed a further memorandum on 18 August 2015, indicating that he was not well (that was stated in a covering email) and would not be travelling down from Hamilton to attend the hearing on 19 August 2015.  He did not appear when the case was called this morning.

[9]      This morning, Mr Toebes advised that the Bank wishes to proceed with its application  for  adjudication.    He  produced  a  certificate  showing  that,  although certain payments have been received by the Bank since the original judgment was given in July 2013, there remains a debt of $454,358.06 owing by Mr Koroniadis to the Bank.

[10]     Turning to the matters raised by Mr Koroniadis in his two memoranda, I deal first with his memorandum dated 10 August 2015.  His first point was a submission that he had not been properly served with the application for adjudication.  There is no merit in that point.  Affidavits sworn by Mr Bell and Ms Eagle sufficiently prove

that he was served in accordance with substituted service orders made by Mallon J

on 16 September 2013.

[11]     Mr Koroniadis’ next point is that he resides in Hamilton, and further hearings in the adjudication proceeding should be heard in the Hamilton registry of the Court. Again, I am satisfied that there is no merit in that point.  The original application for adjudication was properly filed in the Wellington registry of the Court in accordance with  r  24.13(a),  Wellington  being  the  registry  nearest  to  the  place  where Mr Koroniadis then resided (Miramar). And in a memorandum filed by Mr Toebes it is made clear that Mr Koroniadis has attended in this Court regularly in recent times dealing with a variety of litigation matters with which he has been concerned.  He has issued two separate proceedings against the Bank of New Zealand in this Court, and has appeared in Duty Judges’ lists in this Court on 22 June 2015, 6 July 2015 and 3 August 2015.  In addition, Mr Toebes has provided copies of documents filed by Mr Koroniadis in a Disputes Tribunal proceeding in the Hamilton District Court, in which Mr Koroniadis has provided the Miramar address as his residence.

[12]     The proceeding having been served in the correct registry of the Court, I see no basis for moving it to another registry in circumstances where the Bank does not agree to that course.  Mr Koroniadis has demonstrated beyond doubt that he is happy to attend the Court in Wellington when it suits him, and in those circumstances it cannot be for him to dictate that this particular proceeding should be moved to another registry. Mr Koroniadis’ informal application to transfer the proceeding to the Hamilton registry of the Court is accordingly refused.

[13]     The third point made by Mr Koroniadis in his 10 August 2015 memorandum was  that  he  intended  to  appeal  to  the  Supreme Court,  and  that  an  order  for adjudication now would prejudice him in the pursuit of that appeal and also in his pursuit  of  justice  in  the  two  High Court  proceedings  he  has  filed.   As  for  the proposed appeal to the Supreme Court, I accept Mr Toebes’ submission that further delay in resolving the Bank’s claims is pointless.   The matters which were the subject of Mr Koroniadis’ appeal to the Court of Appeal primarily related to issues over Property Law Act notices issued by the Bank in its attempts to pursue the debt. Even complete success by Mr Koroniadis with those arguments would appear to

leave the original debt untouched.   All that would be achieved would be further delay.

[14]     I note too that Mr Koroniadis appears to have been afforded considerable latitude in the Court of Appeal, particularly in being granted leave to add additional grounds of appeal and in obtaining an extension of time for his appeal.  He has had every opportunity to raise in the Court of Appeal whatever arguments he considered were available to him.

[15]     A  further  matter  mentioned  by  Mr Koroniadis  in  his  10  August  2015 memorandum related to a notice of demand apparently issued by the receivers of Miramar Development Ltd (in liq). Whatever the point may be with that submission, I do not see it as having any relevance to the Bank’s application for adjudication.

[16]     Mr Koroniadis’ memorandum filed on 18 August 2015 traversed some of the same ground.  In a covering email, Mr Koroniadis indicated that he was unwell and would not be able to travel down from Hamilton.  However, he proceeded to make his arguments in opposition, in his memorandum.  He did not produce any medical certificate or other information corroborating the claim that he could not travel to Wellington for the hearing, and to the extent that he says that it would have been too costly for him to come to Wellington (he is a full-time student in Hamilton) I note only that he has elected to file two proceedings in this city and has apparently had no difficulty in travelling to Wellington when it suits him to do so.

[17]     Mr Koroniadis contended that an adjudication application should be based on a “certain  amount”.   The basis  for this  submission  is  not  clear,  as  the amount originally claimed was properly set out in the bankruptcy notice and the subsequent proceedings  issued  on  it.    To  the  extent  that  Mr Koroniadis’ concerns  relate  to payments subsequently received by the Bank from other quarters, there is no merit in the argument: judgment creditors regularly receive payments in reduction of their debts after the commencement of their proceedings.

[18]     Mr Koroniadis referred to the two proceedings he has filed in the Wellington

Court.  I have not seen the proceedings, but they apparently allege breaches of the

Fair Trading Act, and it appears that a family trust with which Mr Koroniadis has a connection  is  a  party  to  the  proceedings.    Mr Koroniadis  asked  that  the  Court exercise its discretion to delay any adjudication for a month or so, to allow him to follow  through  on  these  two  proceedings.     I  am  not  prepared  to  do  that. Mr Koroniadis   has   had   over  two   years  since  the  judgment   was   given  by Associate Judge Gendall in July 2013, and that period is more than sufficient for him to have pursued any genuine claims he considers he might have against third parties.

[19]     Mr Koroniadis also stated in his 18 August 2015 memorandum that, in the event of an Official Assignee being “assigned,  it would need to be someone in Hamilton” (having regard to Mr Koroniadis’ current residence in that city).

[20]     Those are the matters raised by Mr Koroniadis in opposition to the Bank’s adjudication application in his memoranda.  In addition, it is appropriate to look back to the amended notice of opposition he filed in this Court on 15 October 2013.  I see nothing in that document which provides any additional ground for opposing the Bank’s application for an adjudication order.  Mr Koroniadis raised the point about the debt needing to be for a “certain” sum.  He also raised an issue that the Bank had proceeded with an execution process, contrary to s 31 of the Insolvency Act 2006. However that point has not been pursued in his recent memoranda, and I have not noted   any   evidence   that   the   Bank   issued   any   execution   process   against Mr Koroniadis personally, as opposed to execution processes being issued against Miramar Development Ltd (in liq) and the pursuit of Mr Koroniadis’ brother on a guarantee of the Bank debt which he had provided.

[21]     Mr Koroniadis referred in his amended notice of opposition to the amount claimed being a sum owed by Miramar Development Ltd which was secured over a property in Edwards Street.  Time has passed that argument by: the Edwards Street property has now been sold, and appropriate credit given to Mr Koroniadis in the total amount which the Bank claims.

[22]     Mr Koroniadis also asked for a stay of the proceeding, but that issue has now been disposed of by the recent judgment of the Court of Appeal.

[23]     Having considered all of the arguments put forward by Mr Koroniadis, I am satisfied  that  there  no  longer  remains  any  basis  to  oppose  the  adjudication application.   That being the case, I make an order for adjudication, with costs on scale 2B to the Bank and disbursements as fixed by the Registrar.  Those orders are timed at 10.30am on Wednesday 19 August 2015.

Associate Judge Smith

Solicitors:

JT Law, Wellington for the judgment creditor