Beaumont Family Trust v Armstrong

[2012] NZHC 835

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-807 [2012] NZHC 835

BETWEEN  BEAUMONT FAMILY TRUST Judgment Creditor

ANDLINCOLN SHANE DOUGLAS ARMSTRONG

Judgment Debtor

Hearing:         27 April 2012

Appearances: Mr Hopkinson for creditor

No appearance for debtor

Judgment:      27 April 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE

Solicitors:

Mr L S D Armstrong, c/o House 10, 618 Maungatautari Road, Cambridge – email:

[email protected]
Tompkins Wake, Hamilton – [email protected] / [email protected]

BEAUMONT FAMILY TRUST V ARMSTRONG HC TAU CIV-2011-470-807 [27 April 2012]

[1]      The debtor in this matter is apparently now residing in New South Wales. Yesterday he filed a notice of opposition and a memorandum in this proceeding and also  in  another  proceeding  CIV-2011-470-786.     The  notice  of  opposition  is apparently identical in each proceeding.  No affidavit has been filed in support of the notice of opposition.   In that regard the debtor is in breach of the requirements of Rule 24.18.

[2]      The  notice  of  opposition  does  not  coherently  plead  matters  which  are available to the debtor by way of defence.  For example he makes reference to what he alleges are “the timetabling of the Act which regulates District Court claims”. That allegation is irrelevant to the proceedings and in any case is not a coherent statement of a principle of law which he can invoke as a defence.   Further, the judgment in this case was entered in the High Court in August of last year.   The amount owing is in excess of $750,000.

[3]      In the memorandum which he has filed, Mr Armstrong says that he seeks for this proceeding and proceeding CIV-2011-470-786 to be adjourned so that he may return to New Zealand “access my papers and file the affidavit as advised in my notice of opposition”.  In his notice of opposition he lists a further point of defence which he would propose raising which is that he has not carried on business in Tauranga for the greater part of six months as alleged in the judgment creditor’s claim.  This would seem to be a reference to the requirement imposed by the Rules when prescribing the form of an application for adjudication order (Form B3) that such an assertion is to appear in the creditor’s application. That in turn is based upon r 24.13 which has to do with the appropriate Registry in which to file bankruptcy proceedings.    There  is  of  course  no  evidence  by  the  debtor  contravening  the creditor’s claim which asserts that he has in fact carried on business at Tauranga for the last six months.  That claim has been verified by affidavit and it is not relevantly open to the debtor to claim that it is incorrect when he himself has not filed an affidavit.   Further,  I would be disposed to view any non-compliance with such requirement as being an informality which does not invalidate the proceedings.   I note that the debtor has not proposed that the proceedings ought to be transferred to another Registry. There is no prejudice arising from that issue it would seem.

[4]      At the present stage there is a binding judgment upon which the bankruptcy notice was based.  No application has been made to set aside the bankruptcy notice or the judgment.  All that had been placed before the Court is an assertion in the notice of opposition that on his return to New Zealand Mr Armstrong “if necessary” will apply for the original order to be overturned.  It is not disclosed the basis upon which he would seek to do that.  He says nothing about his solvency either.

[5]      My conclusion is that this is an unmeritorious attempt to buy further time. The notice of opposition is struck out as not disclosing proper grounds of opposition and because it is not supported by an affidavit.  That being so the creditor is able to proceed today on an undefended basis.   There is no reason why the proceeding should be adjourned until a later date.  I am satisfied that the creditor has established the matters necessary for an order for adjudication to be made and I accordingly make such an order in proceeding CIV-2011470-807.  The order is made at 10.30 a.m.  The creditor will have costs on a 2B basis and disbursements as fixed by the Registrar.

CIV-2011-470-786

[6]      This proceeding too is properly brought and the creditor in that case should have costs on a 2B basis and disbursements as fixed by the Registrar and I order

accordingly.

J.P. Doogue

Associate Judge