Body Corporate 172108 v Cummins - [2025] NZHC 1681

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 1681

BETWEEN BODY CORPORATE 172108
Judgment Creditor/Respondent

AND ROBERT JAMES CUMMINS
Judgment Debtor/Respondent

Hearing: On the papers

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

Judgment: 24 June 2025

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[1] In my judgment dated 30 May 2025, I made an order under s 36 of the Insolvency Act 2006 adjudicating Robert James Cummins bankrupt (Judgment).1 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 has not paid to the Body Corporate by that time the outstanding judgment debts in the sum of
$167,522.41 together with interest.2

[2] On 6 June 2025, Mr Cummins appealed my Judgment to the Court of Appeal. On 17 June 2025, Mr Cummins filed a memorandum in this proceeding seeking urgent interim relief under r 12(3)(b) of the Court of Appeal (Civil) Rules 2005. He effectively sought an extension of the time that the order for adjudication comes into effect pending determination of an application for suspension of adjudication. On

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

BODY CORPORATE 172108 v CUMMINS [2025] NZHC 1681 [24 June 2025]

18 June 2025, Mr Cummins filed an interlocutory application in this proceeding for suspension of adjudication and related orders under s 416 of the Insolvency Act 2006.

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

[4] On 19 June 2025, the Body Corporate filed a notice of opposition to the applications. The same day, Mr Cummins filed a reply memorandum.

[5] In this judgment, I deal with Mr Cummins’ application for urgent interim relief. It seems to me that the application for suspension of adjudication cannot properly be determined until the order for adjudication has come into effect. While I have made an order adjudicating Mr Cummins bankrupt, that order has not yet come into effect. There is no adjudication (and may not be any adjudication) to suspend.4

Application for urgent interim relief

[6]The background to this matter is set out in the Judgment at [8]–[37].

[7] The tests for stay under r 12(3)(a) and interim relief under r 12(3)(b) of the Court of Appeal (Civil) Rules are substantially similar.5 Further an application for suspension of adjudication under s 416 of the Insolvency Act is similar to an application for stay.6 Therefore, the application for interim relief can be dealt with by considering the factors that are relevant to an application for suspension as set out by the Court of Appeal in Bioletti v Commissioner of Inland…

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.

Keep reading for free

Create a free CaseChat account to read Body Corporate 172108 v Cummins and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NZHC 1681
Decision Date: 24 June 2025

CaseChat Overview and Summary

In the case of Body Corporate 172108 v Cummins, the High Court of New Zealand was tasked with deciding whether to grant Robert James Cummins, the judgment debtor, urgent interim relief in the form of an extension of time before the order for adjudication of bankruptcy would come into effect. This application was made by Mr Cummins in light of his appeal against the adjudication order and his subsequent application for suspension of adjudication. The Body Corporate, the judgment creditor, opposed the application.

The court was required to determine whether the urgent interim relief should be granted based on several factors. These included whether the applicant's right of appeal would be rendered nugatory if relief was not granted, the bona fides of the applicant in prosecuting the appeal, whether the respondent would be injuriously affected, the novelty and importance of the question involved, the public interest in the proceeding, the strength of the appeal, and the overall balance of convenience.

The court found that Mr Cummins had not demonstrated that the adjudication order would render his appeal nugatory or that he had bona fide intentions in prosecuting the appeal. It was also found that further delay would be injurious to the Body Corporate and not in the public interest, as the adjudication order was necessary to protect the legitimate interests of the Body Corporate and other unit owners. Additionally, the court found that there was no significant public interest in the proceedings that would justify extending the time for the order for adjudication to come into effect. Furthermore, the court determined that the strength of the appeal was not strong enough to warrant an extension, and the overall balance of convenience did not favour granting the extension.

Based on these findings, the court declined Mr Cummins' application for urgent interim relief. The court did not hear from the parties regarding costs, but it indicated that the Body Corporate might be entitled to costs if they could not be agreed upon. The court also directed the parties to advise whether Mr Cummins' interlocutory application for suspension of adjudication could be determined on the papers filed or if a hearing was required.

Orders