Brake & Transmission NZ Limited v Kelly

[2012] NZHC 1845

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2012-441-206 [2012] NZHC 1845

IN THE MATTER OF     the Insolvency Act 2006

AND

IN THE MATTER OF      the bankruptcy of PAUL JOHN KELLY

BETWEEN  BRAKE & TRANSMISSION NZ LIMITED

Judgment Creditor

Hearing:         26 July 2012 (Heard at Napier)

Judgment:      26 July 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Maude & Miller, Solicitors, PO Box 213, Wellington

BRAKE & TRANSMISSION NZ LIMITED v PJ KELLY HC NAP CIV-2012-441-206 [26 July 2012]

[1]      Before the Court is an application by the judgment creditor seeking an order to adjudicate the judgment debtor bankrupt.

[2]      The debt upon which this proceeding is based totals some $8,095.81 and represents essentially a judgment obtained against the judgment debtor in the District Court at Napier on 14 December 2011.

[3]      A Bankruptcy Notice was issued with respect to this debt and served upon the judgment debtor on 30 April 2012.

[4]      The  judgment  debtor  did  not  respond  to  the  Bankruptcy  Notice  and accordingly an act of bankruptcy occurred.   The present adjudication proceedings were filed on 26 June 2012 and served upon the judgment debtor on 2 July 2012.

[5]      No Notice  of Opposition  to  the present  application  or defence has  been provided by the judgment debtor.

[6]      There is no appearance by or on behalf of the judgment debtor today.

[7]      Instead, on Tuesday last 24 July 2012 Mr PA Nee Harland filed in this Court a document headed “Memorandum Setting Out Circumstances of Debtor with a View to Seeking an Adjournment.”

[8]      The thrust of that Memorandum from Mr Nee Harland who, as I understand it, is a barrister and solicitor of this Court (but he did not appear before me today), is simply that the judgment debtor, Mr Kelly, seeks an adjournment of this proceeding for some two months.  This is on the basis that according to Mr Nee Harland Mr Kelly apparently has an upcoming hearing in the District Court at Napier on 14

August 2012.  This hearing concerns an appeal against an earlier decision in which, as I understand it, the New Zealand Transport Agency in about June or July 2011 made a decision revoking Mr Kelly’s business authorisation to carry out vehicle warrant of fitness inspections.

[9]      As   I   understand   it,   Mr   Nee-Harland’s   submission   contained   in   his Memorandum is that, if the appeal succeeds and Mr Kelly’s business has the right to carry out warrant of fitness inspections re-instated, this will have a positive turnover effect in that he will then be able to recommence the business it having ceased to operate earlier in 2012.

[10]     In addition, Mr Nee Harland indicates in his memorandum that the judgment debtor has suffered a heart attack as a result he says of stress.  He is, however, at present recovering from this.

[11]     Notwithstanding these matters advanced in the Memorandum from Mr Nee- Harland, there is nothing before the Court to indicate the financial position of the judgment debtor or his level of assets or liabilities.

[12]     I  repeat  the  comment  noted  above  that  there  is  no  formal  Notice  of

Opposition or defence advanced in response to the present application.

[13]     Nor, despite the Memorandum provided by Mr Nee-Harland on 24 July 2012, has there been the courtesy of any appearance by or on behalf of the judgment debtor today.

[14]     Under all these circumstances and notwithstanding that this debt does not comprise a particularly large amount in my view the Court has little choice here but to conclude that the judgment debtor is unable to make payment and is therefore insolvent.  This is perhaps even more so given the size of the debt, the fact that it has been outstanding for some considerable time, and the fact that the judgment against the debtor was entered as long ago as December 2011.

[15]     For all these reasons, I am satisfied that an order for adjudication should be made here.

Orders

[16]     An order is now made adjudicating the judgment debtor Paul John Kelly bankrupt.

[17]     Costs are awarded to the judgment creditor on a 2B basis together with disbursements as fixed by the Registrar.

[18]     This order is timed at 11.20 am today, 26 July 2012.

‘Associate Judge D.I. Gendall’