Brambles New Zealand Ltd v Braid - [2018] NZHC 1187

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000472

[2018] NZHC 1187

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Peter Robert Braid

BETWEEN

BRAMBLES NEW ZEALAND LIMITED

(trading as CHEP New Zealand Judgment Creditor

AND

PETER ROBERT BRAID

Judgment Debtor

CIV-2017-409-000473

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Margaret Ann Braid

BETWEEN

BRAMBLES NEW ZEALAND LIMITED

(trading as CHEP New Zealand) Judgment Creditor

AND

MARGARET ANN BRAID

Judgment Debtor

Hearing: 21 May 2018

Appearances:

S T Coupe for Judgment Creditor D G Dewar for Judgment Debtor

Judgment:

24 May 2018

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

BRAMBLES NEW ZEALAND LTD (trading as CHEP New Zealand) v BRAID [2018] NZHC 1187 [24 May 2018]

[1] The judgment creditor (Brambles) applies for orders adjudicating the judgment debtors bankrupt. Judgment was entered in the District Court by default against Mr and Mrs Braid in a total sum of $107,236.87 on 30 May 2017. Judgment was also entered that day against their company, Braid Fine Foods Limited (BFF). The judgment debt remains owing. BFF was placed into liquidation on 14 December 2017. Brambles now applies for orders adjudicating Mr and Mrs Braid bankrupt.

[2] Neither Mr nor Mrs Braid has applied to the District Court to set aside the judgments entered against them. Nonetheless, on these applications they raise concerns about the original and ongoing claims by Brambles that they and BFF owe a debt to Brambles.

[3] Prior to the Christchurch earthquakes, BFF operated a business extracting protein from meat processing waste products, particularly chicken waste. From this it manufactured pet food. Its sources of supply were chicken processing companies in Christchurch.

[4] Due to damage caused by the Christchurch earthquakes BFF was unable to continue to operate. Mr Braid endeavoured to re-establish the business but as part of their own response to the earthquakes, BFF’s two principal suppliers of meat processing waste began to undertake their own processing, and BFF’s source of materials dried up.

[5] Mr Braid then endeavoured to recommence business processing venison and lamb waste. For this BFF needed various items of equipment, including suitable meat handling equipment. BFF entered a contract with Brambles to rent collection bins. Mr and Mrs Braid guaranteed BFF’s obligation to Brambles. Unfortunately, Mr Braid was unable to restore the business to profitable operation using new products, and BFF ceased trading in March 2014.

[6] Mr Braid says that he then took the rented storage bins back to the premises from which they had been taken, in two loads. The first load was dropped off at one property operated by the judgment creditor in Halswell Junction Road, and the second was dropped off at another property on that road. However, the yard staff at the

premises did not issue any documentation, and Mr Braid did not keep any records. He maintains that the bins were dropped off; Brambles’ position throughout has been that they were not.…

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: [2018] NZHC 1187
Decision Date: 24 May 2018

CaseChat Overview and Summary

Brambles New Zealand Ltd, trading as CHEP New Zealand, applied to the High Court of New Zealand for orders adjudicating Mr and Mrs Braid bankrupt, following default judgments against them in the District Court for sums totalling $107,236.87. The Braids opposed the application on the grounds that it was not just and equitable to make such orders. The legal issues before the Court were whether the Court should look behind the District Court judgments to determine if the Braids owed the sums claimed, and if not, whether it was just and equitable to make orders of bankruptcy. The Court found that it should not look behind the District Court judgments, and that in the exercise of its discretion, it was not just and equitable to make orders of bankruptcy in this case. The Court found that the Braids had no assets from which the debts could be satisfied, and that adjudicating them bankrupt would serve no useful purpose. The Court also found that the Braids' financial difficulties and Mrs Braid's ill-health were factors that weighed against making orders of bankruptcy. The Court dismissed the applications.

The final orders of the Court were that each application be dismissed, and that counsel discuss the position regarding costs, with memoranda to be filed if necessary.

Orders