Blakey v Nisbet
[2020] NZHC 2794
•23 October 2020
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2020-441-59
[2020] NZHC 2794
IN THE MATTER of the Insolvency Act 2006 AND
IN THE MATTER
Of the bankruptcy of CRAIG GRANT SCOTT NISBET
BETWEEN
PHILLIPA GAY BLAKEY, PENELOPE ANNE PERE, JOHN ROBERT HANDS and
WAYNE STUART KIRK, as trustees Judgment Creditors
AND
CRAIG GRANT SCOTT NISBET
Judgment Debtor
Hearing: 21 October 2020 Appearances:
D M Kerr for the Judgment Creditors
P N Ross (as agent for J Porter and S J Iorns) for the Judgment Debtor
Reasons Judgment:
23 October 2020
REASONS JUDGMENT OF ASSOCIATE JUDGE LESTER
This Reasons Judgment was delivered by me on 23 October 2020 at 2.00pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 23 October 2020
BLAKEY v NISBET [2020] NZHC 2794 [23 OCTOBER 2020]
[1] An application by the judgment debtor, Craig Nisbet, to set aside a bankruptcy notice issued by the judgment creditors/respondents, came before me on 21 October 2020.
[2] I dismissed the application and awarded costs to the judgment creditors/respondents on a 2B basis plus disbursements as fixed by the Registrar. I also imposed a condition that the judgment creditors/respondents were not to file an application to adjudicate Mr Nisbet bankrupt for five working days after 21 October 2020.
[3]I now issue this reasons judgment.
[4] The debt, which is the subject of the bankruptcy notice, is a costs order against Mr Nisbet made by Churchman J on 16 July 2020. The costs order arose from his Honour’s dismissal, on 2 June 2020, of an application by Mr Nisbet for a freezing order against the judgment creditor trustees (the Nisbet Family Trust (the Trust)).1
[5] In the substantive proceeding in which the freezing order was sought, Mr Nisbet alleged a breach of fiduciary duty against the judgment creditor trustees. Churchman J referred to the statement of claim making a number of allegations, including that the value of the Trust fund had been depleted, that the first respondents had a conflict of interest being both trustees and beneficiaries, and that there was an “imminent breach of fiduciary duties on behalf of the first respondents that could only be remedied by their removal of trustees and their replacement with an independent trustee”.2 Equitable damages were sought on the basis of loss of value to the Trust fund. No details were given as to how the alleged loss occurred or value it might be said to represent.
[6] Mr Kerr appeared for the respondent trustees in the freezing order application and for them in respect of the application to set aside the bankruptcy notice. Mr Kerr explained that Mr Nisbet filed a lengthy affidavit in support of this application for a freezing order, albeit at that time he was self-represented.
1 Nisbet v Blakey [2020] NZHC 1196.
2 At [4].
[7] Churchman J concluded there was no evidence before the Court relating to the allegation that the Trust fund had been depleted in value. His Honour said, “[t]here is no sufficient evidence supporting the allegations made by the applicant that would bring those allegations to a standard of being able to be tenably argued.”3 His Honour went on to say, “I concluded that the applicant has not met the standard of having a good arguable case” and the application was dismissed.4
[8] The bankruptcy notice at issue in this proceeding was served on 24 August 2020. The application to set aside was filed on the last of the 10 working days available to apply,5 that is, 7 September 2020 and served by email on Mr Kerr. Email was not recorded in the bankruptcy notice as being an acceptable method of service, albeit Mr Kerr acknowledged that he did receive the application on that day.
[9] If the only issue had been one of service, I doubt Mr Kerr would have taken the point, his real objection is that the affidavit evidence filed does not meet the threshold of showing that Mr Nisbet had a “genuine triable” cross-claim. In short, nothing has been filed to support Mr Nisbet’s assertion that he has a genuinely triable cross-claim:6
…the Court’s approach on an application to set aside a bankruptcy notice should be treated as akin to that taken when affidavit evidence is considered on an application for summary judgment …
[10] The affidavit that was filed in support only ran to five paragraphs and concluded with Mr Nisbet seeking “… the indulgence of a further 72 hours to file a more comprehensive affidavit explaining my claims against the respondents.” No such affidavit was filed.
[11] Mr Iorns, counsel for Mr Nisbet, filed a memorandum late on 20 October 2020. It stated he had, regrettably, incorrectly recorded the hearing date in his diary. Mr Iorns arranged for Mr Ross to appear as his agent.
3 At [28].
4 At [30].
5 Insolvency Act 2006, s 17(4)(a).
6 See Andrew Beck (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR24.10.03].
[12] Mr Iorns’ memorandum stated “… Mr Nisbet was to file a more detailed affidavit, setting out his claimed setoff, arising from his position both as a beneficiary of the Nisbet Family Trust and the Nisbet Family Trust No. 2, as well as relating to the estate of his late mother (the majority of whose assets were purportedly disposed of through those trusts).”
[13] Mr Iorns’ memorandum recorded the exercise of completing that affidavit had proved to be significantly greater than anticipated. There also appeared to have been a mix up between Mr Iorns and Mr Nisbet as to who was contacting who in relation to the completion of the affidavit. Mr Iorns said he had not reviewed the file for some time, having set time aside to do so well in advance of the erroneous diary entry.
[14] While recognising that such diary mishaps occur, the reality is Mr Nisbet in his affidavit of 7 September 2020 set a self-imposed deadline for filing his further detailed affidavit of 72 hours.
[15] Mr Kerr advised that Mr Iorns had been instructed in respect of the substantive proceedings in which the freezing order was sought. I expect he would have received the affidavit Mr Nisbet filed in support of the freezing order application which, as far as I can tell on the limited material provided by Mr Nisbet, concerned the same alleged causes of action against the trustees hinted at in this application.
[16] At the end of the day, I was not prepared to agree to Mr Iorns’ request for a further adjournment and to allow three weeks to file the full affidavit. I considered the application on the material before the Court. That material did not come near the threshold for an application to set aside a bankruptcy notice. Such was implicitly acknowledged through Mr Nisbet seeking the indulgence of being able to file a further affidavit within short order.
[17] I am not satisfied the circumstances warrant a further adjournment. In reaching this conclusion I have considered the fact Mr Nisbet did not meet that self-imposed deadline and the Court has already held that Mr Nisbet’s allegations against the trustees do not meet the standard of a good arguable case (recognising that the threshold for a freezing order is not the same as for setting aside a bankruptcy notice,
but noting Churchman J’s conclusion that the evidence before him was at a level that Mr Nisbet’s allegations could not be tenably argued). Furthermore, the amount in issue is relatively modest and Mr Nisbet has said that if he must pay the costs award pending final resolution of his claim against the trustees he would do so. I also note that currently the substantive proceedings in respect of the freezing order have not progressed since the freezing order was dismissed on 2 June 2020.
Associate Judge Lester
Solicitors:
DAC Legal, Waipukurau
Copy to counsel: Daniel Kerr, Barrister, Napier
Sievwrights law, Wellington
Copy to counsel: Stephen Iorns, Barrister, Wellington
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