Bax v Poros - [2017] NZHC 2211

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-839 [2017] NZHC 2211

IN THE MATTER of the Insolvency Act 2006

AND IN THE MATTER

of the bankruptcy of Spyridon Poros of
Auckland, Judgment Debtor

BETWEEN

KYLIE BRIDGET BAX Plaintiff

AND

SPYRIDON POROS Judgment Debtor

Hearing: 12 September 2017

Appearances:

Mr Noble for Judgment Debtor/Applicant
Mr Godinet for Judgment Creditor/Respondent

Judgment:

12 September 2017

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

K B BAX v S POROS [2017] NZHC 2211 [12 September 2017]

Application to set aside bankruptcy notice

[1] Mr Poros’ debt to Ms Bax relates to unpaid costs awards of $8,426.50 made on

7 July 2015, and $6,132.50 made on 5 November 2015.

[2] Those costs awards remain unpaid and Ms Bax has served a bankruptcy notice on Mr Poros.

Background

[3] On 18 December 2015 Mr Poros filed his Property Relationship Act proceeding against Ms Bax in the Hamilton Family Court. He filed an amended application in that proceeding on 26 October 2016. The former application alleged Ms Bax fraudulently disposed of relationship property, namely the former family home of the parties, to a trust.

[4] By his amended application he claims an interest in three properties registered in the name of the trust and seeks payment to him of a half share value of each.

[5] Mr Poros has provided a copy of his affidavits sworn in support of his claims. He and Ms Bax were married in August 2004 and have three children. They separated in May 2014. He provides his account of how the properties in question were acquired during the course of their marriage.

[6] Mr Poros has also provided the Court with a copy of the second affidavit dated

26 October 2016, filed in the Hamilton Family Court. By that affidavit he responded to an affidavit filed on behalf of Ms Bax. Also provided to this Court is a copy of Mr Poros’ affidavit dated 17 March 2017 and filed in the Hamilton Family Court. It comments on Police charges being brought against him upon a complaint by Ms Bax and another.

[7] The clear purpose of these documents is to support Mr Poros’ claims of a bona fide commitment to resolve relationship issues with Ms Bax. These issues, it is submitted, could not have been used as a defence in the action or the proceeding from which the costs orders arose.

[8] Mr Noble advises the Family Court proceedings were set down for hearing in

Hamilton this week but were adjourned due to counsel’s unavailability.

[9] Mr Poros must satisfy the Court of the sufficiency of a cross claim if the Court is to set the bankruptcy notice aside.

Considerations

[10] It is the case for Mr Poros that he has a genuine triable claim against Ms Bax.

[11] As Mr Godinet for Ms Bax submits at the conclusion of Mr Poros’ pre- commencement application heard before Associate Judge Osborne, he did not…

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.

Continue reading Bax v Poros

Details

AGLC: Bax v Poros [2017] NZHC 2211
Case: [2017] NZHC 2211
Decision Date: 12 September 2017

CaseChat Overview and Summary

The case of Bax v Poros involves a dispute between Kylie Bridget Bax and Spyridon Poros regarding unpaid costs awards amounting to $14,559. The matter was heard in the High Court of New Zealand, Auckland Registry. The primary issue before the court was whether the bankruptcy notice served by Ms Bax on Mr Poros should be set aside, considering Mr Poros' claims related to unpaid relationship property. The court had to determine whether Mr Poros' claims could be considered a bona fide commitment to resolving relationship issues with Ms Bax, which could have been used as a defense in the proceedings that led to the costs orders.

The court examined whether Mr Poros had a genuine triable claim against Ms Bax that could not have been used as a defense in the proceeding when costs were ordered. The court noted that costs on opposed interlocutory applications are generally paid unless special reasons exist. It found that Mr Poros had an opportunity to request that costs be reserved pending the outcome of his relationship proceedings but did not do so. The court concluded that while Mr Poros had a genuine claim, it was unlikely that section 17(7) of the Insolvency Act 2006 was intended to assist a party in avoiding the consequences of costs orders made against them. Therefore, the court decided that the application to set aside the bankruptcy notice should be adjourned to allow the Hamilton Family Court to address the outstanding issues between the parties.

The court adjourned the matter for call in the chambers list on 10 November 2017 to review progress with the Family Court proceedings. Costs on the current setting aside application were reserved, and the court indicated that if Mr Poros' application was granted, there would likely be no order for costs in his favor. The decision underscores the importance of considering the broader context of the parties' disputes and the intended purpose of insolvency legislation when dealing with applications to set aside bankruptcy notices.

Orders