Bartercard Exchange Limited v De Vries - [2016] NZHC 703

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-739 [2016] NZHC 703

UNDER the Insolvency Act 2006

IN THE MATTER OF

bankruptcy proceedings

BETWEEN

BARTERCARD EXCHANGE LIMITED Judgment Creditor

AND

ANTHONY HARRY DE VRIES Judgment Debtor

Hearing: 9 December 2015

Counsel:

J K Mahuta-Coyle for the Judgment Creditor
A H de Vries in person

Judgment:

15 April 2016

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] The judgment creditor Bartercard Exchange Ltd (Bartercard) applies for an order adjudicating Mr de Vries bankrupt.

[2] Bartercard served a bankruptcy notice on Mr de Vries on 30 September 2015. The debt claimed in the bankruptcy notice was $179,772.42, said to be the amount of a judgment Bartercard obtained against Mr de Vries in the Hutt Valley District Court on 22 September 2011.

[3] In fact, Bartercard obtained two judgments against Mr de Vries in 2011, one being the judgment just mentioned (which was obtained in proceeding CIV-2011-
032-396 – I will refer to it as “the principal judgment”), and the other for the sum of

$170,308.56 (in proceeding CIV-2011-032-387). As a bankruptcy notice can only be issued in respect of one judgment, Bartercard elected to issue its bankruptcy notice
based on the principal judgment.

BARTERCARD EXCHANGE LIMITED v ANTHONY HARRY DE VRIES [2015] NZHC 703 [15 April 2016]

[4] Mr de Vries did not pay the amount claimed in the bankruptcy notice, and he did not secure it or enter into a new formal agreement with Bartercard, or obtain the High Court’s approval of terms of payment. Nor did he file any application to set aside the bankruptcy notice.

[5] Bartercard filed its application for an adjudication order on 5 November

2015.

[6] When Bartercard’s application for adjudication was called on

1 December 2015, another party claiming to be a creditor appeared to support the application. That party was Body Corporate 68792 (the Body Corporate). The Body Corporate claims that Mr de Vries owes it approximately $167,000.

[7] Mr de Vries filed a detailed and lengthy notice of opposition to the application for adjudication. He has also filed an affidavit, and a number of memoranda and other documents, most of which were concerned with various disputes he has with the Body Corporate. At this stage, I am not concerned with the claims of the Body Corporate, as it has not been substituted as creditor under s 44 of
the Insolvency Act 2006 (the Act).1

[8] A further form of affidavit was submitted by Mr de Vries’ wife Mrs Geraldine de Vries, but it was unsworn. Mr de Vries confirmed at the hearing that his wife had elected not to complete the affidavit.

The events since the District Court judgments were obtained in September 2011

[9] Bartercard applied for an order for examination of Mr de Vries as to his means. The examination was conducted before a deputy registrar in the Lower Hutt District Court on 28 May 2012. In a formal report dated 30 May 2012, the Deputy Registrar recorded that, after assessing Mr…

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: [2016] NZHC 703
Decision Date: 15 April 2016

CaseChat Overview and Summary

Bartercard Exchange Ltd applied for an order adjudicating Mr de Vries bankrupt. Bartercard had served a bankruptcy notice on Mr de Vries on 30 September 2015, claiming $179,772.42, the amount of a judgment it obtained against him in the Hutt Valley District Court on 22 September 2011. Mr de Vries did not pay the amount claimed in the bankruptcy notice, secure it or enter into a new formal agreement with Bartercard, or obtain the High Court’s approval of terms of payment. Nor did he file any application to set aside the bankruptcy notice. The court found that the amount stated in the bankruptcy notice was overstated and that Bartercard had not provided sufficient evidence to permit correction of the amount stated in the bankruptcy notice. The court dismissed Bartercard’s application for an adjudication order. The court also dismissed Bartercard’s application to correct the bankruptcy notice.

Orders