Bartercard Exchange Limited v De Vries - [2018] NZHC 854

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2016-485-428

[2018] NZHC 854

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Anthony Harry de Vries

BETWEEN

BARTERCARD EXCHANGE LIMITED

Judgment Creditor

AND

ANTHONY HARRY DE VRIES

Judgment Debtor

Hearing: 7 November 2017 and 7 February 2018

Appearances:

M Anderson (7 November 2017) and Mr Dewar (7 February 2018) for the Judgment Creditor

Mr de Vries in Person
Mr Jefferies, Mr de Vries’ McKenzie Friend, in person (7 February 2018 only)

Judgment:

30 April 2018

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] This is an application by the Judgment Creditor (Bartercard) for an order adjudicating the Judgment Debtor (Mr de Vries) bankrupt.

Background

[2] Mr de Vries’ relationship with Bartercard has a protracted history, which is set out in detail in three of my earlier judgments.1 The following is a brief summary of the history of the dispute:

1 Bartercard Exchange Ltd, ex parte de Vries [2016] NZHC 703 [the April 2016 Judgment]; De Vries v Bartercard Exchange Ltd [2016] NZHC 287 [the November 2016 Judgment] and Re de Vries, ex parte Bartercard Exchange Ltd [2017] NZHC 1851 [the Recusal Judgment]. See also

BARTERCARD EXCHANGE LIMITED v DE VRIES [2018] NZHC 854 [30 April 2018]

(1)Bartercard obtained two judgments against Mr de Vries in the Hutt Valley District Court in September 2011. One of them was for the sum of
$179,772.42 (the principal judgment), and a bankruptcy notice (the first notice) was issued in respect of that sum and served on Mr de Vries on 30 September 2015.

(2)Mr de Vries did not apply to set aside the first notice, and Bartercard filed an application to adjudicate him bankrupt on 5 November 2015. On 15 April 2016, I issued a judgment (the April 2016 Judgment) dismissing the application to adjudicate Mr de Vries bankrupt, on grounds that the amount claimed in the first notice was overstated, and there was insufficient evidence to determine the exact amount of the overstatement.

(3)Bartercard then filed a second bankruptcy notice for $140,644.91 on 5 July 2016 (the second notice). Mr de Vries applied to set aside the second notice. I dismissed that application in a judgment delivered on 30 November 2016 (the November 2016 Judgment).

(4)In the meantime, Mr de Vries had filed an application to set aside the 2011 judgments entered against him in the District Court. On 5 December 2016,
Judge Tompkins dismissed that application.2

(5)Mr de Vries then filed an appeal to this Court against the judgment of Judge Tompkins.

(6)On 23 December 2016, Mr de Vries filed an appeal against the November 2016 Judgment in the Court of Appeal.

(7)In April 2017, I adjourned Bartercard’s adjudication application to await the outcome of certain procedural matters affecting Mr de Vries’ appeal to the Court of Appeal. Bartercard’s adjudication application was subsequently adjourned on several occasions while procedural issues were being addressed by the Court of Appeal, including an application by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 854
Decision Date: 30 April 2018

CaseChat Overview and Summary

The case of Bartercard Exchange Limited v De Vries concerns an application by Bartercard for an order adjudicating Anthony Harry de Vries bankrupt under the Insolvency Act 2006. The application followed the issuance of two bankruptcy notices by Bartercard, the second of which de Vries failed to comply with. The proceedings have a lengthy history, with multiple judgments, appeals, and applications to set aside the bankruptcy notices. The Court considered Bartercard’s application and de Vries’ opposition, including his strike-out application and various substantive challenges to the adjudication application. The Court found that the requirements for an adjudication order were satisfied, and that de Vries had not provided any basis for the Court to refuse to make the adjudication order. The Court dismissed de Vries’ strike-out application, struck out his purported counterclaim, and adjudicated de Vries bankrupt. The Court also directed that Bartercard is entitled to costs in the proceeding.

Orders