Chang-Hooker v Rooke

[2013] NZHC 1763

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-002584 [2013] NZHC 1763

BETWEEN  SANDY CHANG-HOOKER Applicant

ANDDAVID JOHN ROOKE Respondent

Hearing:                   11 July 2013

Appearances:           S Chang-Hooker in person the Applicant

D R Rooke in person the Respondent

Judgment:                11 July 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

SANDY CHANG-HOOKER v DAVID JOHN ROOKE [2013] NZHC 1763 [11 July 2013]

[1]      Ms Chang-Hooker was on 26 May 2013 served with a bankruptcy notice issued by the Auckland High Court at the request of Mr Rooke.  Ms Chang-Hooker applies to set aside the bankruptcy notice. Today is the first call of that application.

[2]      Mr Rooke filed his request for the issue of the bankruptcy notice on 13 May

2013.  For that purpose he provided a certified copy of a final judgment given on 18

July 2012 in respect of costs awarded against Ms Chang-Hooker upon her unsuccessful application to set aside a judgment of Brewer J which had issued on 13

March 2012.  On 18 July 2012 Goddard J dismissed the setting aside application and awarded costs on a 2B basis.   Those costs totalled $5,664.00 inclusive of disbursements. The Court sealed an order for costs in that sum.

[3]      Ms Chang-Hooker has challenged the bankruptcy notice on a number of grounds. They include:

(a)      That the Court order awarding costs was not served upon Ms Chang- Hooker immediately after it was sealed,  in contravention of High Court Rule 11.11(5).

(b)      The judgment of Goddard J incorrectly referred to the date of 30

March 2012 instead of 13 March 2012 when referring to the date of Brewer J’s judgment.   Therefore Ms Chang-Hooker submits that because Justice Goddard’s judgment incorrectly referred  to the 30

March 2012 and not 13 March 2012 which was the correct date, the sealing of any order for costs is invalid even though that sealed order correctly refers to the 13 March 2012 date.

(c)      Ms Chang-Hooker objects to the fact that service was effected upon her when she, as a real estate agent, was conducting an open home of a property she was selling.  She has a number of concerns about the manner in which service was effected.

(d)She disputes the amount of the costs order and wants the High Court to review that cost.

Considerations

[4]      Court  file  records  do  not  record  the  date  on  which  an  order  is  sealed. Routinely orders are sealed as an immediate precursor to taking recovery action – in this case for the issue of a bankruptcy notice.  The evidence here is the bankruptcy notice was  issued  soon  after Mr  Rooke  requested  it  and  for which  purpose he provided a copy of the judgment earlier sealed by the High Court.  The Court does not require knowing whether a sealed copy of a judgment has been served when it issues a bankruptcy notice.  Rule 11.11.5 has no effect on the issue of a bankruptcy notice.

[5]      That judgment contained two parts.   The first refers to the Judge having dismissed Ms Chang-Hooker’s application to set aside Brewer J’s judgment.  In the second part the Judge ordered:

The respondent is entitled to costs on a 2B basis in the amount of $5,664.00.

[6]      Judge Goddard’s judgment contained a typographical error in that it referred to Brewer J’s judgment having been given on 30 March 2012 and not 13 March

2012.  The order that was sealed contained the correct date.  The sealed order is not invalid because the date of Brewer J’s judgment is incorrectly recorded in the judgment of Goddard J.

[7]      Although Ms Chang-Hooker complains about the amount of the costs award calculated as it was in accordance with category 2B, the Court in sealing the order has correctly endorsed the amount of the costs award payable in the circumstances. Ms Chang-Hooker says the costs are too high and she wishes to challenge these.  In fact she is out of time to do that.  No appeal has been lodged against the decision of Goddard J.

[8]      Although Ms Chang-Hooker is upset about the circumstances in which she was  served  with  the bankruptcy notice  it  is  nevertheless  clear that  service was effected and that the bankruptcy notice came to her attention, as indeed she acknowledges.

[9]      Rule 24.8 states that a Registrar may approve the issue of a bankruptcy notice if the request is founded on a judgment or an order of the Court.  In this case the request was accompanied by a certified copy of the judgment bearing date 18 July

2012, the date of Goddard J’s judgment.  The certified copy which was served with the bankruptcy notice did not show the date upon which the Court sealed it.  Court files do not record that date.

[10]     Section 418 of the Insolvency Act 2006 provides that proceedings under the Act cannot be invalidated or set aside because of any defect.  In fact the bankruptcy notice did not contain  any defect in as  much as the sealed order for judgment correctly referred to costs being awarded upon dismissal of the application to set aside the judgment of Brewer J. The sealed order for judgment correctly refers to the date of Brewer J’s judgment even though the judgment of Goddard J did not.  No question of prejudice arises in the outcome of what was clearly a typographical error.

Conclusion

[11]     Ms  Chang-Hooker’s  application  to  set  aside  the  bankruptcy  notice  is

dismissed.

[12]     The Court orders that the time for compliance with the bankruptcy notice be extended to 31 July 2013.

[13]     Costs are reserved.   If Ms Chang-Hooker does not satisfy the bankruptcy notice by 31 July 2013 then Mr Rooke is invited to apply to the Court to fix costs on

the setting aside application on a 2B basis.

Associate Judge Christiansen