Burt v Yiannakis - [2018] NZHC 3102

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-0184

[2018] NZHC 3102

IN THE MATTER

AND
of the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of YIANNOS YIANNAKIS

BETWEEN

DEANNE MARGARET BURT

Judgment Creditor

AND

YIANNOS YIANNAKIS

Judgment Debtor

Hearing: 3 October and 23 November 2018

Appearances:

C Bunce for the Judgment Creditor

Judgment Debtor in person (via Audio Link)

Judgment:

28 November 2018

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 28 November 2018 at 2.00pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Harkness Henry, Hamilton

BURT v YIANNAKIS [2018] NZHC 3102 [28 November 2018]

[1] The judgment Creditor (Ms Burt) applies for an order adjudicating the judgment debtor (Mr Yiannakis) bankrupt.

[2] Ms Burt relies on consent orders (the Consent Orders) made in this Court on 17 October 2016 under the Property (Relationships) Act 1976 (the PRA). Among other orders, there were orders requiring Mr Yiannakis to pay to Ms Burt the sum of
$450,000, in two tranches. The first tranche ($250,000) has been paid. Mr Yiannakis was ordered to pay the second tranche of $200,000 within 15 weeks from the date of the Consent Orders.

[3] That $200,000 has not been paid, and on 22 June 2017 Ms Burt issued a bankruptcy notice claiming that sum together with interest thereon at five per cent per annum and costs. On 1 September 2017 an order was made granting her leave to serve the bankruptcy notice in Bangkok, Thailand, where Mr Yiannakis now resides. Mr Yiannakis was allowed 20 working days after service to pay the amount demanded in the bankruptcy notice, or to file an application in this Court setting it aside.

[4] There is an issue as to whether the bankruptcy notice was properly served. An affidavit has been provided by Mr Macdonald, Ms Burt's former solicitor, stating that on 28 October 2017 he served Mr Yiannakis with the bankruptcy notice and the order granting leave to serve out of New Zealand. Mr Macdonald either happened to be passing through Bangkok, or travelled to Bangkok to effect the service. In any event, he deposes that on 28 October 2017 he went into the foyer of the apartment block in Bangkok in which Mr Yiannakis then resided. Mr Macdonald said in his affidavit that when Mr Yiannakis came out of the lift Mr Macdonald called his name and told him that he had bankruptcy documents issued by the Court to serve on Mr Yiannakis. Mr Macdonald's evidence is that Mr Yiannakis then walked out of the door of the building and began to walk away. Mr Macdonald stated that he went after him, calling out his name and telling him that he had papers to serve on him. When Mr Macdonald got closer, Mr Yiannakis began to run away. Mr Macdonald said that he caught up to him, and again told Mr Yiannakis that he had…

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 Burt v Yiannakis

Details

AGLC: Burt v Yiannakis [2018] NZHC 3102
Case: [2018] NZHC 3102
Decision Date: 28 November 2018

CaseChat Overview and Summary

This matter concerns a creditor's application for an order adjudicating a debtor bankrupt. Deanne Margaret Burt, the judgment creditor, seeks an order of adjudication against Yiannis Yiannakis, the judgment debtor, who has failed to pay a sum of $200,000 within 15 weeks of consent orders. The primary legal issue is whether the Court should exercise its discretion under the Insolvency Act 2006 to make an order of adjudication against Mr Yiannakis. The Court considered the arguments of both parties, the interpretation of the consent orders, and whether the debtor was able or willing to pay the debt. The Court found that Mr Yiannakis had sufficient funds to pay the debt but was unwilling to do so, and therefore declined to exercise its discretion in favour of making an order for adjudication. The Court dismissed the application for an adjudication order.

Orders