Brkic v White - [2025] NZHC 2598

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-415

[2025] NZHC 2598

IN THE MATTER of the Insolvency Act 2006

BETWEEN

GORDON BRKIC

Judgment Creditor

AND

CAROLINE RUTH WHITE

Judgment Debtor

Hearing: 2 September 2025

Appearances:

P L Rice for Judgment Creditor W C Pyke for Judgment Debtor

Judgment:

9 September 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 9 September 2025 at 10.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

BRKIC v WHITE [2025] NZHC 2598 [9 September 2025]

[1] Gordon Brkic and the other trustees of the Madeg Trust obtained a judgment against Caroline White and the other trustee of the Grafton Road Trust on 18 June 2018.1 Mr Brkic has served Ms White with a bankruptcy notice in respect to the judgment.

[2]Ms White applies to set the bankruptcy notice aside on the grounds that:

(a)the bankruptcy notice is invalid because it overstates the amount claimed by including interest to the date of issue of the bankruptcy notice when part of that interest is time barred;2 and

(b)she has a set-off or cross-claim that equals or exceeds the amount claimed in the bankruptcy notice.

[3]The issues addressed by counsel in their written submissions were:

(a)Is the claim to interest in the bankruptcy notice overstated?

(b)If so, can the defect be corrected under s 418 of the Insolvency Act 2006?

(c)Does Ms White have a genuine triable set-off or cross-claim that equals or exceeds the debt claimed in the bankruptcy notice that she could not set up in the proceeding in which the judgment was obtained?3

[4] The first two of these issues no longer need to be determined. I understand it is agreed the bankruptcy notice does overstate the interest claimed to the extent that no more than six years of interest can be claimed on the judgment debt,4 and that the Court may amend the defect under s 418 of the Insolvency Act in the manner proposed by Mr Brkic’s counsel. That leaves only the third issue to consider.

1      Brkic v White [2018] NZHC 1458.
2      Limitation Act 2010, ss 11, 12, 16(1)(a) and 51.
3      Insolvency Act 2006, s 17.
4      Benecke v Wise (1997) 11 PRNZ 440 at 444.

Background

[5] There is a history of litigation between the parties that provides the relevant background.

[6] The trustees of the Madeg Trust (the Madeg trustees) made advances to the trustees of the Grafton Road Trust which were not repaid. On 18 June 2018, Moore J entered judgment in favour of the Madeg trustees in the sum of $109,820 with interest calculated at the rate of 22 per cent per annum from 10 May 2012.5

[7] On 3 July 2019 the Madeg trustees registered a charging order over a property at Boiler Gully (the Boiler Gully property) which was registered in Ms White’s name. On 6 August 2019 the Madeg trustees obtained…

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.

Continue reading Brkic v White

Details

AGLC: Brkic v White [2025] NZHC 2598
Case: [2025] NZHC 2598
Decision Date: 9 September 2025

CaseChat Overview and Summary

Gordon Brkic, the judgment creditor, applied to have Caroline Ruth White, the judgment debtor, declared bankrupt. Ms White applied to set aside the bankruptcy notice on the grounds that the notice overstated the amount claimed by including interest to the date of issue of the notice when part of that interest was time-barred, and that she had a set-off or cross-claim that equalled or exceeded the amount claimed in the bankruptcy notice. The primary issue was whether Ms White had a genuine triable set-off or cross-claim that equalled or exceeded the debt claimed in the bankruptcy notice that she could not set up in the proceeding in which the judgment was obtained. The Court found that Ms White did not have a genuine triable counterclaim against the Madeg trustees that could be raised in opposition to the bankruptcy notice for several reasons. Firstly, neither of the causes of action pleaded in the statement of claim was tenable as a matter of law. Secondly, Ms White's evidence was unsatisfactory, its implausibility, and the absence of corroborating evidence supporting the existence of the counterclaim. Lastly, there was a lack of mutuality between the competing claims. The application to set aside the bankruptcy notice was dismissed. The Court ordered that Mr Brkic shall file an amended bankruptcy notice and serve that upon Ms White forthwith. Ms White shall have 10 working days to comply with the notice or otherwise exercise any rights in respect to it.

Orders