Bezuidenhoudt v New Zealand Institute of Chartered Accountants

[2016] NZCA 321

IN THE COURT OF APPEAL OF NEW ZEALAND

CA158/2016
[2016] NZCA 321

BETWEEN	MICHIEL DAVID BEZUIDENHOUDT Applicant
AND	NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS Respondent

Hearing:	4 July 2016
Court:	Harrison, French and Cooper JJ
Counsel:	Applicant in person D McKenzie for Respondent
Judgment:	7 July 2016 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is declined. 

BThe applicant is ordered to pay the respondent costs on a standard      application for leave on a band A basis together with usual         disbursements.

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REASONS OF THE COURT

(Given by Harrison J)

1. Michiel Bezuidenhoudt was adjudicated bankrupt by an order made in the High Court on 3 February 2016.[1]  The time for filing an appeal against the order expired on 2 March 2016.[2]  Mr Bezuidenhoudt applied to this Court on 13 April 2016 for an extension of time to bring his appeal.[3]  The respondent, the New Zealand Institute of Chartered Accountants, opposes the application. 

   [1]New Zealand Institute of Chartered Accountants v Bezuidenhoudt HC Whangarei CIV-2015-488-81, 3 February 2016 [Bankruptcy judgment].

   [2]Court of Appeal (Civil) Rules 2005, r 29.

   [3]Court of Appeal (Civil) Rules, r 29A.

2. The brief background is this.  In May 2013 the Institute’s Disciplinary Tribunal found Mr Bezuidenhoudt guilty of three charges of breaching the Institute’s rules.  The Tribunal ordered Mr Bezuidenhoudt to pay costs of $8,000.  Following his failure to pay, the Institute obtained summary judgment against Mr Bezuidenhoudt in the District Court for payment of the $8,000.[4]  The High Court dismissed his appeal.[5]  The Institute then issued a bankruptcy notice against Mr Bezuidenhoudt based on the judgment debt.

   [4]New Zealand Institute of Chartered Accountants v Bezuidenhoudt [2015] NZDC 5253.

   [5]Bezuidenhoudt v New Zealand Institute of Chartered Accountants [2015] NZHC 2376.

3. The Institute applied to the High Court for an order adjudicating Mr Bezuidenhoudt bankrupt for failing to comply with the bankruptcy notice.  When adjudicating Mr Bezuidenhoudt bankrupt, Associate Judge Bell observed:

   [3]       … Mr Bezuidenhoudt’s opposition to the application is mis-directed.  He does not understand — or refuses to understand — that the fact that the District Court has given judgment against him, and that his appeal against that judgment has been dismissed, means that the Institute is indisputably a creditor and is entitled to rely on the judgment as proof of his indebtedness to it.  Given that Mr Bezuidenhoudt did oppose the District Court proceedings and did appeal, using his undoubted rights of appeal, means that it cannot now be open to this court to question the decision of the District Court in any way.  In short, I see no basis for Mr Bezuidenhoudt’s opposition to the application.

4. In support of his application, Mr Bezuidenhoudt advises that the appeal was out of time because he filed the notice in the High Court at Whangarei.  He was unaware that the original notice had to be filed in this Court.  He rectified his error immediately he learned of it.

5. It is difficult to identify Mr Bezuidenhoudt’s argument in support of his substantive appeal against adjudication.  It appears to be that he should not have been adjudicated bankrupt because the original debt was not proved.  He had advised Associate Judge Bell that he had no intention of paying his costs award.[6] 

   [6]Bankruptcy judgment, above n 1, at [4].

6. In determining Mr Bezuidenhoudt’s application we must decide where the interests of justice lie.  A number of factors are relevant to the exercise of our discretion.  In our judgment it is decisive, as the Institute submits, that Mr Bezuidenhoudt’s appeal is without merit.  It is beyond argument, as Associate Judge Bell noted, that Mr Bezuidenhoudt was liable to the Institute on a judgment debt.  Without payment of the amount claimed in the bankruptcy notice he had no legal right to oppose the adjudication.  He cannot now revisit the merits of the judgment debt.  He has no arguable grounds of appeal. 

7. Accordingly, the application for an extension of time to appeal is declined.  Mr Bezuidenhoudt is ordered to pay the Institute costs on a standard application for leave on a band A basis together with usual disbursements.

Solicitors:
Minter Ellison Rudd Watts, Wellington for Respondent