Capricorn Society Limited v O'Hanlon HC NWP CIV 2007-443-000560

[2008] NZHC 2323

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV 2007-443-000560

IN THE MATTER OF     the Insolvency Act 1967

AND

IN THE MATTER OF     the bankruptcy of ANTHONY O'HANLON

BETWEEN  CAPRICORN SOCIETY LIMITED Creditor

ANDANTHONY O'HANLON Debtor

Hearing:         13 May 2008

Counsel:         R Wilson for creditor

Debtor in person

Judgment:      13 May 2008 at 10.45am

ORAL JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

Callaghan & Co, PO Box 1434, Auckland

Thomson O’Neil & Co, 195 High St, Eltham

CAPRICORN SOCIETY LIMITED V A O'HANLON HC NWP CIV 2007-443-000560  13 May 2008

[1]      Capricorn Society Limited (Capricorn) has applied for the adjudication of Anthony O’Hanlon on the basis of an unsatisifed judgment entered against him in the District Court at Hawera on 16 July 2007.     Capricorn has served a bankruptcy notice on Mr O’Hanlon.    He did not respond to that notice and Capricorn has now applied for an order for adjudication on the basis of that unmet bankruptcy notice.

[2]      The application for adjudication first came before the Court first on 11 March

2008.     Mr O’Hanlon  appeared in person.    He contended that the judgment debt had been paid prior to entry of that judgment.    Capricorn contested that and pointed out that all payments alleged by Mr O’Hanlon had been made prior to the judgment, and the two which Capricorn has record of receiving were taken into account.

[3]      The application for adjudication was adjourned to today on condition that Mr

O’Hanlon file and serve any application to set aside the judgment no later than 21

March 2008.     I added the rider that the creditor would be permitted to proceed today unless Mr O’Hanlon had filed an application to set aside the judgment and that application had not been determined, or that he had paid the debt and costs of the application in full.

[4]      Mr O’Hanlon has not applied to set aside the judgment.   Instead a notice of intention to oppose this application has been filed.   That was on 25 March 2008.   It was filed by a solicitor (Mr Harding of Thomson O’Neil & Co of Eltham), although it does not expressly give his firm’s address as the address for service.

[5]      Mr Harding has also sent a memorandum to the Court by fax late yesterday advising that he had not received any notice of the call, and had  commitments elsewhere.     He said it was too late to engage an agent for today’s call.     Mr O’Hanlon appears again in person.

[6]      Mr O’Hanlon informs me that he instructed Mr Harding, following the last hearing, to apply to set aside the judgment.     There is no indication of that in the memorandum  filed  by Mr  Harding.         I also  have  some  misgivings  over  the statement by Mr Harding that he had no notice of today’s hearing.     Mr O’Hanlon was told of this hearing date when he appeared last time.   It was always open to Mr

Harding to obtain a copy of my minute from the Court file.   There has been ample time to do so in the two months that has passed.

[7]      Mr Wilson appears today seeking an adjudication.     He makes the further point that even if two payments allegedly made by Mr O’Hanlon, and not credited as part of the claim in the District Court, are taken into account (or allowed for), there is still a sum of approximately $6,000 due which Mr O’Hanlon has not paid.

[8]      I take into account the following factors in coming to the view that this is not an appropriate case to adjourn further:

a)       The judgment debt was entered on 16 July 2007.    It has not been stayed, nor any steps taken by Mr O’Hanlon to have it set aside.

b)A bankruptcy notice was issued.   Again Mr O’Hanlon took no steps to have it set aside.

c)       Mr  O’Hanlon  failed  to  file  notice  of  intention  to  oppose  the application ahead of the first hearing.

d)Mr O’Hanlon has not met the condition of the adjournment at the last call that he apply to set aside the judgment.     I do not consider it sufficient for him to now say that he asked his solicitor to do so, but took no other steps until contacting his solicitor yesterday.

e)       Mr  O’Hanlon  has  failed  to  produce  any  satisfactory  evidence  to support his assertion that he has not been given credit for all the payments  made  to  Capricorn  (all  before  judgment  was  entered). There is an issue as to whether or not he received a letter from Mr Wilson’s instructing solicitors dated 20 March 2008 asking for evidence to support payments.      Whether or not he received that letter, that was a basic element of any application that should have been made to set aside the judgment (as directed last time) or, at least, any opposition to the present application.

[9]      If Mr O’Hanlon can find some evidence to show that the judgment of the District Court was entered in error (a matter of which I have considerable doubt given the extent of time that has elapsed) that will be a ground for applying to annul his adjudication.   Given the passage of time, his lack of steps, and the lack of any indication that there have in fact been payments which have not been fully credited I see no grounds at all to deny the creditor the right to proceed today.

[10]     Mr O’Hanlon has not met the condition imposed at the last call.    His notice of intention to defend was filed out of time, and without leave.    I decline any further adjournment.   Capricorn is entitled to proceed.

[11]     Mr O’Hanlon is adjudicated bankrupt.   He is to pay the creditor costs of and incidental to this application on a 2B basis together with disbursements as fixed by

the Registrar.    This order is timed at 10.45am.

Associate Judge Abbott