Body Corporate 172108 v Cummins - [2025] NZHC 1790

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-458

[2025] NZHC 1790

BETWEEN
BODY CORPORATE 172108

Judgment Creditor/Respondent

AND

ROBERT JAMES CUMMINS

Judgment Debtor/Applicant

Hearing: On the papers

Appearances:

J Orpin-Dowell and T Allan for Judgment Creditor/Respondent R Cummins In Person

Judgment:

2 July 2025

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[Application for suspension of adjudication]

[1] The background to this matter is set out in my judgment dated 30 May 2025 (Bankruptcy Judgment),1 which should be read with this judgment.

[2] In the Bankruptcy Judgment, I made an order under s 36 of the Insolvency Act 2006 adjudicating Robert James Cummins bankrupt. I ordered that the adjudication order would not come into effect until 4.00pm on Tuesday 24 June 2025, and then only if Mr Cummins had not paid to the Body Corporate by that time the outstanding judgment debts in the sum of
$167,522.41 together with interest.2

[3] On 6 June 2025, Mr Cummins appealed the Bankruptcy Judgment to the Court of Appeal. On 17 June 2025, Mr Cummins filed a memorandum in this proceeding

1 Body Corporate 172108 v Cummins [2025] NZHC 1378 [Bankruptcy Judgment] at [8]–[37].
2 At [125].

BODY CORPORATE 172108 v CUMMINS [2025] NZHC 1790 [2 July 2025]

seeking urgent interim relief under r 12(3)(b) of the Court of Appeal (Civil) Rules 2005. He effectively sought an extension of time before the order for adjudication would come into effect, pending determination of an application for suspension of adjudication. On 18 June 2025, Mr Cummins filed an interlocutory application in this proceeding seeking orders suspending the adjudication and restraining the Official Assignee from advertising the adjudication under ss 416 and 66 of the Insolvency Act 2006.

[4] Mr Cummins says he previously filed these applications in the Court of Appeal on 11 June 2025 and they were accepted for filing.3 I understand that, subsequently, in a minute dated 17 June 2025, Cooke J ordered the applications were to be made to this Court in the first instance.4

[5] On 19 June 2025, the Body Corporate filed a notice of opposition to the applications. The same day, Mr Cummins filed a reply memorandum. Due to Matariki, the applications came before me on 23 June 2025. This was the day prior to the date the order for adjudication was to come into effect.

[6] In my judgment dated 24 June 2025 (issued at 11.50 am), I declined to extend the time that the order for adjudication would come into effect.5 Mr Cummins did not pay the outstanding debt, the respondent filed an updated solicitor’s certificate under r 24.20 of the High Court Rules 2016, and the adjudication came into effect at 4.00pm on 24 June 2025.

[7] The parties then advised they were content for me to determine Mr Cummins’ application for suspension of adjudication on the papers filed and Mr Cummins sought an early decision. Due to other urgent scheduled matters, I was unable to determine 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: [2025] NZHC 1790
Decision Date: 2 July 2025

CaseChat Overview and Summary

In the case of Body Corporate 172108 v Cummins, the High Court was tasked with deciding whether the adjudication of Robert James Cummins as bankrupt should be suspended pending the outcome of his appeal against the bankruptcy order. The court needed to consider various factors, including whether the right of appeal would be rendered nugatory without suspension, the bona fides of the applicant in prosecuting the appeal, whether the Body Corporate would be injuriously affected, the effect on third parties, the novelty and importance of the questions involved, the public interest in the proceeding, and the strength of the proposed appeal. The court also had to determine whether to restrain the Official Assignee from advertising the adjudication pending the appeal.

The court examined each factor carefully. It found that while Mr Cummins had raised a number of issues in his appeal, the right of appeal would not be rendered nugatory without suspension. The court was not satisfied that Mr Cummins had demonstrated any additional factors beyond the usual consequences of bankruptcy that would result in irreversible prejudice or unfairness to him if the adjudication was not suspended. The overall balance of convenience did not favour suspension. The court also declined to restrain the Official Assignee from advertising the adjudication, stating that the impact on Mr Cummins' reputation was an ordinary consequence of bankruptcy.

Ultimately, the court declined Mr Cummins' application for orders suspending adjudication and prohibiting the Official Assignee from advertising the adjudication. The interim order suspending the adjudication and prohibiting advertising was discharged, and the court indicated that the Body Corporate would likely be entitled to costs if the matter proceeded to a costs determination.

Orders